Recent legislative activity in New Jersey creates additional protections for New Jersey employees.
New Jersey Law Against Discrimination Expanded To Target Pay Inequality
An amendment to the New Jersey Law Against Discrimination (“NJLAD”) now prohibits New Jersey employers from retaliating against an employee who discloses to or requests from another employee information about any employee’s job title, occupational category, pay (including benefits), gender, race, ethnicity, military status, or national origin for the purpose of investigating or taking legal action against possible pay discrimination. This amendment is effective immediately.
This amendment to NJLAD is designed to allow employees to discuss their salaries and benefits with other current and former employees so they can identify potential discriminatory pay practices. By allowing employees to more freely discuss their compensation, the law is intended to make it harder for employers to conceal unlawful disparities in pay and other benefits. In conjunction with legislation passed last year requiring New Jersey employers to post written notice to employees of their right to be free from gender discrimination in pay, benefits, and other terms and conditions of employment under state and federal law, the passage of this new anti-retaliation measure shows the strong efforts in New Jersey to reduce discriminatory pay practices.
Even outside New Jersey, employers should be aware that the National Labor Relations Board (“NLRB”) already considers employees’ discussion of the terms and conditions of their employment to be protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). This provision of the NLRA applies to both union and nonunion employees. Accordingly, under this new New Jersey law as well as the NLRA, employers should ensure that their policies regarding confidentiality or compensation do not prohibit employees from discussing their compensation with each other or engaging in other protected activity.
Social Media Password Inquiries Significantly Limited
Effective December 1, 2013, New Jersey has joined the approximately twelve other states that prohibit employers from requiring or requesting current or prospective employees to provide their username, password, or any other means of accessing their personal social media accounts, including Facebook, Instagram, LinkedIn, and the like. The law also prohibits an employer from retaliating or discriminating against a current or prospective employee who files a complaint with the Commissioner of Labor and Workforce Development or who participates in an investigation concerning a violation of this law. An employer who violates the law is subject to a civil penalty of up to $1,000 for the first violation and $2,500 for each subsequent violation.
Employers, however, may still access and view information that a current or prospective employee posts that is publicly accessible on social media.
Employers who choose to view the publicly accessible content on their employees’ or job applicants’ social media pages for purposes of investigation and/or background checks should be aware that the NLRB has issued guidance on employees’ use of social media. Employees’ posts on social media regarding the terms and conditions of their employment may be considered protected concerted activity under Section 7 of the NLRA. Again, this applies to both union and nonunion employees.
Therefore, employers should ensure that supervisors, Human Resources, and others involved in the hiring process are aware of these laws so as not to violate them.