S992 has been described as a measure that would strengthen protections against employment discrimination and promote equal pay for women by codifying existing federal law. The myth that this bill is not that big of a change from current practices, but that it will make a big difference, is probably why it passed the New Jersey Senate by a vote of 28-4 on February 11.
In fact, the bill provides for three distinct policy elements, each of which would significantly increase the risk of unwarranted litigation and introduce considerable uncertainty into New Jersey’s civil justice system.
The bill would do three things:
1. Create an employment information database to facilitate litigation based on statistical disparities.
2. Add additional factors to gender parity calculations. This would increase uncertainty over whether existing bargained-for employment relationships can be defended in court.
3. Disrupt the existing, stable, state and federal law on the appropriate period for allowable back pay arising out of gender discrimination litigation. Right now there is a two year statute of limitations in place, but it is not clear that limit would remain intact under this bill.
Each of these elements is troubling enough on its own, but together they compound the risk to employers.
For example, 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 to argue that her salary reflected a sex-based differential, and that her paychecks from the point of initial hire reflected 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.
The Senate was also scheduled to vote on S799, which would require all businesses in the state to offer their employees paid sick leave, but the bill was ultimately pulled from the calendar. Politico New Jersey is reporting that with two Democrats absent from the voting session, the bill’s sponsor, Sen. Weinberg (D-Teaneck), said there weren’t enough members who support it to get the 21 votes it needed to pass. Weinberg said the Senate will likely try again on Tuesday in a brief voting session before Gov. Chris Christie delivers the budget address.