New Jersey Amends Law Against Discrimination and Expands Scope of Protection Against Retaliation

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The New Jersey Law Against Discrimination (commonly referred to as the "LAD") has for years afforded protection to those who file a complaint, testify or assist in any proceeding, or who otherwise oppose any act forbidden by the state anti-discrimination law. On August 28, 2013, New Jersey Governor Chris Christie signed into law an amendment to the LAD that expands the existing anti-retaliation protection. Effective immediately, the LAD includes a retaliation ban against employees who ask current or former colleagues for information about the job title, occupational category, rate of compensation (including benefits), gender, race, ethnicity, military status or national origin of any other employee or former employee. In order to qualify for anti-retaliation protection, the request must be made for the purpose of (1) investigating potential discriminatory treatment concerning pay, bonuses or other compensation or benefits; or (2) taking legal action regarding discriminatory treatment concerning pay, bonuses or other compensation or benefits.

This legislative development is a measure designed to promote pay equity in the state. Lawmakers believe that allowing employees to freely discuss compensation and benefits will be a step in the right direction toward exposing pay disparities and eliminating wage discrimination. Unlike similar protections to discuss compensation and benefits afforded to non-supervisory employees under the NLRA, the LAD's new protection against retaliation applies to all employees.

Neither employers nor employees are legally required to respond to requests for information about compensation and benefits of current or former employees. The amendment only prohibits reprisals against the requestors of such information.

What This Means for New Jersey Employers

New Jersey employers should review their human resources policies and employee handbooks to ensure that they do not contain terms inconsistent with this recent LAD amendment. Additionally, employers should promptly train managers and supervisors on the expanded protection afforded by the LAD and the permissible inquiries that can be raised by employees without fear of reprisal.

New Jersey Employers May Suffer the Consequences of Failing to Respond Timely to Requests for Information Pertaining to Unemployment Claimants

On August 20, 2013, Governor Christie signed into law legislation barring the State of New Jersey from crediting employer accounts for erroneous charges and benefit payments when employers are dilatory in responding to the Division of Unemployment Insurance's requests for information.

After October 22, 2013, the New Jersey Department of Labor and Workforce Development (NJDOL) will no longer credit employer accounts for erroneous benefit payments made to unemployment compensation claimants, where the employer has demonstrated a pattern of failing to respond or waited more than 10 days to respond to the NJDOL's request for information about the claimant. An employer engages in a "pattern of failing" when the employer fails to respond to the NJDOL's inquiries three or more times during the year prior or the employer fails to respond to two percent or more of the number of requests from the NJDOL's Division of Unemployment Insurance during that same time period.

To the extent that unemployment claimants are overpaid because the NJDOL relied on representations of the claimant as to wages and hours worked, employers will lose the right to have their accounts rectified, absent fraud, where the overpayment is due to a pattern of failing to respond to inquiries within the 10-day window provided.

What This Means for New Jersey Employers

Employers should have an appropriate system in place to ensure that inquiries from the NJDOL regarding unemployment claimants are responded to promptly.