Wednesday, September 11, 2013

Ask, But Don't Tell?

New ImageNew Jersey just joined the ranks of those barring retaliation against employees for discussing their
compensation. Sort of.  

The NLRB has long held that policies against such discussions tend to chill the right to concerted action by those covered by the law, and several states previously enacted statutes protecting employees who engage in such discussions. Now NJ has one too -- but not a law that explicitly bars such policies or one which protects any discussion of compensation.  Rather, the new statute amends the state's Law Against Discrimination to declare it unlawful

for any employer to take reprisals against any employee for requesting from any other employee or former employee of the employer information regarding the job title, occupational category, and rate of compensation, including benefits, of any employee or former employee of the employer, or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer, regardless of whether the request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits.

NJSA 10:5-12(r).

That means the statute, read literally, bars reprisal for requesting information related to compensation -- but only if the purpose of the request is investigating or taking legal action against "potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits." Idle inquiries are thus not protected, but it would be a foolhardy firm that tried to mind-read the intent of a worker seeking such compensation data in order to discharge him for having an unqualifying motive.

But while the statute protects workers who "ask," it doesn't seem to protect workers who "tell." Hence, the "ask but don't tell" title of this post. While there is explicit protection for those seeking certain information, there is no explicit protection for those who provide it.  The closest the enactment comes is  providing that it should not be construed "to require an employee to disclose such information about himself," which is fine as far as it goes but doesn't address the rights of an employee who chooses to disclose.  

This would seem to allow employers to continue to promulgate policies barring an employee from disclosing his or her compensation -- so long as enforcement was taken against the discloser not the disclosee.  Whether it would make any sense for a NJ employer to take this stance is another question since the state courts have tended to read LAD protections broadly and the policy might be invoked as proof that a terminated worker was really fired for asking. 

Another oddity is that the statute also protects requests for information about the "gender, race ethnicity, military status, or national origin" of other employees.  Not included are inquiries related to other protected categories, such as age, religion, disability, and sexual orientation.  Does that mean that an employee seeking compensation information in order to, say, prove a case of age discrimination is not protected?  Or is she only unprotected to the extent she asks other workers about their ages? Was the legislature trying to safeguard co-worker privacy interests for protected statuses that are not necessarily visisible -- disability, sexual orientation, and religion?  If so, why is age not included. which is at least as apparent as most of the listed categories? 

There's some legislative history, but none that sheds light on these issues. The law originated as an amendment to the state's Conscientious Employee Protection Act (where it would have protected both discloser and disclosee), was conditionally vetoed by Governor Christie because it more properly belonged in the Law Against Discrimination, and was re-passed by the legislature as an amendment to LAD.  Why the current version emerged from the legislative mill is simply not apparent.


Thanks to Ed Hartnett for helping me parse this puzzling law.

Employment Discrimination | Permalink

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