Continuing the recent deluge of salary history ban laws,1 on July 25, 2019, New Jersey Lieutenant Governor Sheila Oliver signed Bill A1094 into law.2 Like other recent laws limiting salary history inquiries, New Jersey’s law prohibits employers from screening job applicants based on the applicant’s prior salary history, which includes prior wages, salary or benefits. In addition, employers may not require that an applicant’s salary history satisfy any minimum or maximum threshold to be considered for a job. The new law takes effect on January 1, 2020.
The law provides for a private right of action as well as civil penalties from $1,000-$10,000 per violation depending on the circumstances. The law does not expressly define what conduct will be considered as a single “violation” for purposes of calculating penalties.
Fortunately for employers, New Jersey’s law contains examples of expressly permitted activities and exceptions from coverage in certain key areas:
New Jersey’s law also contains perhaps the most nuanced approach to employment agencies compared to similar salary history laws. The law provides that (a) applicants may disclose salary history information and information regarding the applicant’s experience with incentive and commission plans to employment agencies the applicant is using to search for work and (b) the employment agency may provide that information to employers as long as it has the applicant’s express written consent. Employers will have to await further guidance as to how courts and the N.J. Commission of Labor and Workforce Development will interpret the specifics of this provision given the overarching prohibition on employers’ using salary history information to screen applicants otherwise.
Finally, unlike some recent laws and ordinances, New Jersey’s law does not require that the employer affirmatively disclose a wage scale for applicants.4
1 See, e.g., Jean L. Schmidt and Sean A. Malley, New York Expands Pay Equity Law Beyond Equal Work and Gender and Bans Inquiries into Salary History, Littler ASAP (July 11, 2019); Katherine Suttle Weinert, Alabama Enacts Pay Equity Law, Littler ASAP (June 13, 2019); Alexandra Hemenway and Dylan Long, Kansas City, Missouri Joins National Movement to Ban Salary History Inquiries, Littler ASAP (May 31, 2019); Breanne Martell and Alexandra Hemenway, Washington Amends its Equal Pay Law to Enact Salary History Ban and Require Disclosure of Salary Ranges, Littler ASAP (May 16, 2019); Jennifer Harpole, Colorado Legislature Passes Significant Equal Pay Bill, Including Salary History Ban and Job Posting Requirements, Littler ASAP (May 8, 2019); Toledo, Ohio Ordinance O-173-19.
2 Lt. Gov. Oliver is serving as New Jersey Acting Governor while Governor Phil Murphy is on vacation.
3 The law also exempts any employer actions taken because a federal law or regulation requires the disclosure or verification of salary history for employment purposes or requires knowledge of salary history to determine an employee’s compensation.
4 This is a requirement under the California, Colorado, Cincinnati, Toledo, and Oregon laws.