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Unequal Pay and Wage Claims - Diane B. Allen Equal Pay Act

It is not news to Blacks, women, etc., that they are often paid less than co-workers for doing the same job. Thanks to the Diane B. Allen Equal Pay Act, the law now comes down hard on workers who can prove their disparity in pay for doing substantially the same kind of work was illegally based on their class. This NJ law is the most aggressive equal pay law in the country. It protects women and minorities from pay disparity when their job title differs from non-protected classes who do substantially similar work.

If you are a NJ worker whose employer is paying you less for doing substantially the same kind of work as other employers, and the pay disparity is based upon your race, age, gender etc., you could be entitled to treble damages under the Diane B. Allen Equal Pay Act if the employer has no legal defenses.

The defined classes given protection under this Act are the recognized classes under the New Jersey Law Against Discrimination (NJLAD),  including but not limited to color, national origin, ancestry, age, marital status, civil union status, domestic partnership status,  race, creed, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability, atypical hereditary cellular or blood trait of any individual, and liability for service in the armed forces.

 Even if your employment position has a different name, different job title, your employer cannot pay you less because of your class if you are doing substantially similar work to others who are paid at a higher rate who are in a different class.  

This new law dramatically expands the wage discrimination protections given to NJ employees, and  additionally takes into context the character and skill of the job as a whole. There are no longer only protections for those holding the same job title or position; this new law is not just a prohibition against disparate pay for the same work, but also for substantially similar work when viewed as a composite.

“Substantially Similar Work” - This Act makes it illegal:

"For an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility."

Language within the statute gives indications of what the courts will likely consider in rendering decisions in these types of wage claims.  In deciding what is “substantially similar work” under this law, the courts will likely consider some key language in the statue itself. i.e.,  “substantially similar work, when viewed as a composite of skill, effort and responsibility.”

To avoid liability under this new law, the employer must demonstrate that the differential is made pursuant to a seniority system, a merit system, or the employer can demonstrate that the differential in pay and compensation is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class, i.e., if the employer can demonstrate that the disparity in wages in not based on the employees' sex or race etc., but on other factors such as training, education, experience, the quantity of work, the quality of production.

Courts will likely look at whether the higher paid non-protected workers and lower paid protected workers have substantially similar duties and responsibilities, whether the employees regularly supervise others, whether they themselves are regularly supervised, the amount of discretion and autonomy they are allowed in performing their job duties, the breadth of their decision-making responsibilities, if any exist. 

It is illegal to tell NJ workers that they cannot discuss their pay with others as a condition for employment. It is also illegal to retaliate against a worker if the worker inquires or discusses voluntarily with his co-workers their pay and compensation in benefits (but the co-worker is not required to discuss their pay or benefits). If you inquired or discussed your pay with other workers and your employer found out and retaliated against you, you may have a claim for illegal retaliation.

It is strictly illegal per the Diane B. Allen Equal Pay Act,  for an employer to require that any employee or prospective employee sign any paper that is a waiver, or to otherwise require an employee or prospective employee to agree, not to make requests of others inquiring about their pay and compensation information or disclosures. However, it should be noted that there is nothing in this statute that requires employees to answer the questions of other employees regarding their pay, compensation and benefits. If the employee chooses to not answer the questions of other employees regarding their pay, compensation, and benefits, they have the right to not answer. Nothing in the new subsection of the NJLAD shall be construed to require an employee to disclose such information about the employee himself/ herself to any other employee or former employee of the employer or to any authorized representative of the other employee or former employee.

When an employer pays a worker in a protected class at a lower rate of compensation, than is paid to other workers who are not members of the protected class who are doing substantially similar work as proven in Court with no legal justification for the disparity,  such as a bonafide merit system, quantity of work load etc., the employer is violating N.J.S.A.§ 10:5-12 (t), entitling the worker to three times the monetary damages per, N.J.S.A.§ 10:5-13 (d). 

Prohibited Retaliation

It is not only illegal to tell workers that they cannot discuss their pay with others as a condition for employment; it is also illegal to retaliate against the worker if the worker does inquire or discuss with his co-workers their pay and compensation in benefits. If you did not follow your employer's instructions to not discuss pay, and your employer found out and retaliated against you, you may have a claim for illegal retaliation.

Anti-retaliation provision:

 A NJ worker is engaged in protected activity under the Diane B. Allen Equal Pay Act, incorporated into the LAD as N.J.S.A.§ 10:5-12 (r), when the worker inquiries about rates of pay of others, or engages in a voluntary discussion with other workers regarding pay. If the employer retaliates against the employee for such inquiry or discussion, the employer violates § N.J.S.A. 10:5-12 (r), entitling the worker to three times the damages per N.J.S.A. § 10:5-13 (d). 

Do not sit on your rights, or you may lose the right to file your claim.

For a free consultation contact Hope A. Lang at

(201) 599 9600 with your employment discrimination questions today.

 Hope A. Lang, Attorney at Law, represents employees throughout New Jersey in complex employment discrimination lawsuits. She accepts cases from all counties in Northern, Southern, and Central New Jersey and has locations in central, western and northern New Jersey to meet with clients. If you believe that you have been discriminated against due to gender identity or other protected characteristic, such as age, disability, pregnancy, race, religion, sex, sexual orientation or national origin, or in retaliation for reporting what you believed to be illegal acts of your employer,  she can help you. It is important to know your rights as an employee.



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