On Monday, March 14, the Assembly voted 54-14-6 in favor of A2750/S992, which has been described as a state-level Lilly Ledbetter Fair Pay Act. The New Jersey Civil Justice Institute opposes this legislation, which is now headed to Governor Christie’s desk, because it goes much further than the federal law and makes changes to the fundamental underpinnings of our legal system.
Asm. Webber delivered a powerful floor speech outlining the legal issues this bill raises.
Under the proposed law, an employee could begin a job out of college earning a competitive market wage for her chosen profession and remain with the same employer for her entire career. At the moment of her retirement, she could use the database of wage data (which is mandated by the bill) to argue that her salary reflected a sex-based differential, and that her paychecks from the point of initial hire reflect one, long, continuing violation for which the statute of limitations had never begun to run, entitling her to compensatory damages for the entirety of her career.
In order to defend themselves against such a complaint, a business would have to prove their innocence in court, since this legislation would shift the burden of proof from the employee to the employer. The employer would be presumed guilty unless they could prove their innocence. This is a radical, unprecedented change.
This legislation differs from the federal Lilly Ledbetter Fair Pay Act, which already provides equal pay protections to New Jersey workers, in several other ways as well.
- Under the federal law, there is a two year statute of limitations on claims, so an employee cannot seek damages from alleged injuries that occurred more than two years ago.
- The New Jersey legislation would require employers to keep a database of wage data that could be used to bring litigation based on perceived statistical disparities.
- It is unclear employees doing similar work could ever legally be paid different wages under the New Jersey legislation because the factors businesses are allowed to consider when setting wages are uncertain.
Though this legislation goes much further than the federal law, there is no reason to believe it will do anything to increase pay equity.