There has been a good deal of controversy and confusion over whether the recently enacted New Jersey Equal Pay Act was retroactive.  The law became effective July 1, 2018 and has a six year statute of limitations.  Could a lawsuit filed after enactment, say in August 2018, go back to August 2012?  We did not know but it now seems that the answer is a resounding “no.”  This is because a recent federal court decision has said so. The case is entitled Perrotto v. Morgan Advanced Materials, PLC and was filed in federal court in the District of New Jersey.

The plaintiff asserted that retroactive application was warranted and would neither vitiate any party’s constitutional rights nor cause manifest injustice. The Company defended by asserting there was no basis to indicate retroactivity.  The Company contended there was no express or implied legislative intent for retroactive application.  The law was also not curative, as it was a totally new statutory scheme.  Lastly, the Company maintained that the parties’ expectations did not allow for retroactive application.

The Court agreed with the Company.  The Court examined the statute’s plain language to discern legislative intent and opined that, although the law was passed on April 25, 2018, it specifically postponed the effective date until July 1, 2018.  The Court believed that this delayed enactment demonstrated that the Legislature intended the law to only have prospective application.

The Court also found that the law cured nothing by amendment.  As the Court noted, a curative amendment remedies “a perceived imperfection in or misapplication of a statute” or clarifies the lawmakers’ intent behind the creation of the law.  Moreover, a retroactive application would not cure anything because this is a “first of its kind” law that dealt with pay fairness for performing “substantially similar work.”  In other words, the law expanded employee protections, by, for example, making a six year statute of limitations rather than the two years for an alleged violation of the New Jersey Law Against Discrimination.  Thus, the law did not seek to explain or clarify existing law.

The Takeaway

An eminently correct result, I daresay…

This January is an exciting month for several reasons: (1) it’s my birthday month and (2) the NJ DOL issued the new poster promulgated by the 2012 amendment to the NJ Equal Pay Act.

The Amendment was passed about one year ago, and employers have been standing-by, patiently waiting for the DOL to issue it.  The Amendment requires employers with 50 or more employees to conspicuously post a form issued by the DOL a poster detailing the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the Law Against Discrimination.”

The posting and distribution requirements were triggered yesterday (January 6, 2014) and now the following is required:

  • Starting yesterday (1/6/14) employers with 50 or more employees must post conspicuously post the gender equity notice in a place accessible to all employees;
  • For each employees who was hired on or before 1/6/14, the employer must provide each employee a notice by February 5, 2014;
  • For each employee who was hired after 1/6/14, the employer must provide that employee with a written copy of the gender equity notice at the time of the employee’s hiring;
  • The notice must be distributed annually on or before 12/31 of each year;
  • If any employee requests the notice, the employer must provide it.

Employers additionally must obtain accompany the Notice with an acknowledgment form, that must be signed and returned to the employer within 30 days of its receipt.