This week, the legislature gave final approval to two wage discrimination bills opposed by NJCJI because they have the potential to increase the risk of litigation for employers in New Jersey, and contrary to what is being claimed by supporters and reported by the media, make our state law different from federal law governing the same topic. The bills, which are virtually identical to legislation that Gov. Christie conditionally vetoed last session, now sit on the Governor’s desk.
While this bill appears to be a mere matter of disclosure, there are potential broader ramifications that are likely unintended.
We are concerned the bill will create a data mine of employment information of any employer doing business with any level of government. It could unfortunately be put to good use by the plaintiff trial bar to generate litigation, and prompt employers to think twice before doing business with the state. To the extent employers choose to do so, the costs of both compliance and risk will be factored into their pricing. Essentially public entities will be contracting for both the supply of services and the risk of a lawsuit, as a package deal.
Clarity and predictability are important elements in a well-functioning civil justice system. Unfortunately, the Unfair Wage Recovery Act, addresses a point where the case law is already clear, and instead introduces considerable uncertainty.
The bill would upend a relatively settled area of law, creating new questions. It provides that an unlawful employment practice occurs with each affected paycheck, a point that is already well-established. The bill then invokes the “continuing violation” model, which was proposed and rejected in the New Jersey Supreme Court case Alexander v. Seton Hall University in 2010, and confirms the court’s authority to apply the “continuing violation” doctrine to “any appropriate claim as that doctrine currently exists in New Jersey common law.” While not directing the court to apply the doctrine, the bill lacks the clarifying language found in the federal Lilly Ledbetter law which limits the duration of available back pay.
The result is new confusion on a point where the law had been both stable and predictable. We would urge the legislature to amend the bill to mirror both the federal law, existing New Jersey case law, and the policy advocated in Justice Ginsberg’s Ledbetter dissent.