ATTEMPT TO OVERRIDE EQUAL PAY LAW VETO THWARTED FOR NOW
An attempt to pass a law that would require equal pay for women in New Jersey was thwarted on Jan. 23 when it became apparent that sponsors did not have the votes to override Gov. Chris Christie’s veto of the same bill last May.
The effort came three days after the Trump inauguration, two days after millions of women marched against him and the same day that Trump re-instated the Reagan-era global gag rule – the prohibition on U.S. funding for international organizations that provide information about abortion, even if none of the American dollars go to pay for abortions.
The New Jersey legislation, S-992, would be a state version of the federal Lilly Ledbetter Fair Pay Act, the first legislation signed into law by President Barack Obama, on Jan. 29, 2009, about a week after he took office.
Lilly Ledbetter was a supervisor at a Goodyear tire plant in Alabama, who complained to the Equal Employment Opportunity Commission in 1998 that she was being paid significantly less than her male counterparts. Her pay had started out as roughly equal but over her nearly 20 years with the company diverged more and more into a stark discrepancy by the time she took action.
She claimed she did not know of the pay discrimination until she received an anonymous note revealing the salaries of three male managers and it was then that she went to the EEOC.
A jury awarded her about $3.3 million in back pay and other compensatory and punitive damages but the verdict was thrown out on appeal on the ground that she was too late because the discriminatory decision to pay her less had occurred years earlier. A divided U.S. Supreme Court upheld that ruling in a majority opinion written by Justice Samuel Alito, who is from New Jersey. Justice Ruth Bader Ginsberg and three other justices dissented.
Lilly Ledbetter was left with no remedy for years of gender-based pay discrimination. And the precedent meant that other women would also be blocked from suing no matter how long the discrimination went on and how large the discrepancy, so long as their employers managed to conceal the unequal pay until the statute of limitations expired.
The legislation signed by Obama overturned the Supreme Court decision with regard to the timing of equal pay claims brought under federal law. It resets the time to sue with each discriminatory pay check.
The New Jersey proposal, whose 33 sponsors include Senate President Stephen Sweeney and Loretta Weinberg, D-Bergen, applies the same time reset under state law but goes further in allowing recovery of back pay for the entire period of the discrimination, not just two years, as under the federal law.
It also allows treble damages, bars reprisal against employees for disclosing compensation, job titles and other pertinent information to a lawyer or government agency; prohibits conditioning employment on waiver of employee rights, and requires companies doing work for the state to supply demographic and compensation information on every employee involved in the work.
The measure was introduced in February 2016, passed the Senate a week later and cleared both houses about a month after that. Of the 120 members of the Legislature, only 18 votes were cast against the bill, 4 in the Senate and 14 in the Assembly, with 14 total abstentions. Ten of the “yea” votes were cast by Republicans.
Despite that overwhelming and bipartisan support, Gov. Chris Christie conditionally vetoed the bill in May 2016. He opposed allowing plaintiffs to recover all the pay they were denied on account of discrimination, insisting on the same two-year limit as the federal law, and disapproved of the treble damages proviso.
In addition, Christie thought that employers should be allowed to require job applicants to waive the two-year statute to limitations saying that would align with current law. He was probably referring to the 2014 decision in Rodriguez v Raymours Furniture, where an appeals court found such a waiver enforceable. In that case, it reduced the time to sue from two years to a mere six months.
The Rodriguez ruling, however, was overturned by New Jersey’s Supreme Court one month after Christie’s conditional veto, in June 2016. The court held, 6 to 0, that allowing such a truncation of the time to sue would frustrate the purpose of the New Jersey Law Against Discrimination. The court further indicated that the waiver was probably unconscionable and thus unenforceable for that reason as well.
The Star Ledger reported that Weinberg said there was an attempt to compromise with Christie on the legislation but the negotiations were unsuccessful.
So instead of watering down S-992, the Democrats tried for an override in the Senate on Jan. 23. It required two-thirds of the 40-member chamber–27 votes, which was one fewer than the 28 the bill garnered on original passage.
But after a heated debate, the override had only 23 backers, prompting chief sponsor Weinberg to pull the bill before an official tally and try again for an override at some later date.
According to the Star Ledger, three Democrats were absent, three of the five Republicans who supported the bill the first time voted against the override and there were multiple abstentions.
Sweeney has indicated he will bring the bill up for a vote again when all Democrats are present.