EEO - Retaliation: New Jersey
Federal law and guidance on this subject should be reviewed together with this section.
Authors: James Anelli and Robert Pettigrew, LeClairRyan
- New Jersey's employment retaliation laws are generally more expansive than the federal statutes. See Prohibition Against Retaliation.
- Employers are prohibited from retaliating against individuals pursuant to the New Jersey Law Against Discrimination, New Jersey Equal Pay Act, New Jersey Family Leave Act and other state laws. See Prohibition Against Retaliation.
- Actionable retaliation is no longer limited to the workplace or current employees. See New Jersey Law Against Discrimination.
Prohibition Against Retaliation
New Jersey Law Against Discrimination
The New Jersey Law Against Discrimination (NJLAD or LAD) prohibits an employer or person from taking reprisal against any person because that person has opposed any practices or acts forbidden under the LAD. +N.J. Stat. § 10:5-12.
Under an amendment effective March 18, 2019, the LAD forbids retaliation based on the grounds that a person does not enter into an agreement or contract that contains a provision deemed against public policy and unenforceable. For example, a nondisclosure provision related to a discrimination, harassment or retaliation claim is deemed void and unenforceable under the LAD. +2018 Bill Text NJ S.B. 121; see Terms of Employment: New Jersey.
The LAD also makes individuals liable for aiding and abetting retaliatory conduct that is in violation of the LAD. In order to prove a retaliation claim, an individual must show that:
- He reasonably and in good faith engaged in a protected activity known by the employer;
- The employer unlawfully retaliated; and
- There is a causal link between the protected activity and the adverse action.
See Carmona v. Resorts Int’l Hotel, Inc., +189 N.J. 354 (2007).
Under the LAD's retaliation provision, an adverse employment action is no longer limited to discharge, demotion and suspension, but now encompasses any action that might dissuade a reasonable worker from engaging in protected activity. See Roa v. Roa, +200 N.J. 555 (2010).
An employee filing a retaliation claim under the LAD need not show "actual discrimination against an identifiable victim," but only that he or she had a reasonable belief that there was a violation of the LAD's protections against workplace discrimination. See Battaglia v. UPS +2013 N.J. Lexis 734.
Liability under this provision, therefore, now extends to actions taken against former employees after the employment relationship ended.
The LAD permits an aggrieved individual to elect between instituting either an administrative or civil action for retaliation. +N.J. Stat. § 10:5-13.
An individual has two years from the time of an alleged retaliatory act to bring a civil action. See Montells v. Haynes, +133 N.J. 282 (1993).
An individual has 180 days from the time of an alleged retaliatory act to file a complaint with the Division on Civil Rights (DCR).
New Jersey Family Leave Act
The DCR also enforces the New Jersey Family Leave Act (NJFLA) under which an employee is entitled to a family leave of 12 weeks in any 24-month period for the birth or adoption of a child commencing within a year after the date of the birth or placement for adoption, or to care for an ill family member. +N.J. Stat. § 34:11B-1.
An employer is prohibited from retaliating against an employee for opposing any practice made unlawful by the NJFLA.
An aggrieved employee may elect to file a civil or administrative action seeking the same remedies provided under the LAD, except that punitive damages are capped at $10,000.
Retaliation for Equal Pay Violations
Effective July 1, 2018, the Diane B. Allen Equal Pay Act will amend the NJLAD to make it an unlawful employment practice for an employer to discriminate against an employee because the employee is a member of a protected class by paying compensation, including benefits, to employees of a protected class less than the rate paid to employees outside the class for substantially similar work when viewed as a composite of skill, effort and responsibility. +2018 Bill Text NJ S.B. 104.
Under the Act, an employer is prohibited from:
- Taking any reprisals against an employee for discussing with or disclosing to other employees, or former employees, attorneys or government agencies information about job titles, occupational categories, rates of compensation, gender, race, ethnicity, military status, or national origin of employees or former employees; or
- Requiring, as a condition of employment, that an employee or prospective employee waive rights under the law.
An employer further may not discriminate or retaliate against an individual because:
- The individual opposed any acts or practices forbidden under this law;
- The person sought legal advice regarding his rights;
- Shared relevant information with legal counsel;
- Shared information with a governmental entity or
- Filed a complaint, testified or assisted in any proceeding under this law to coerce, intimate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by this law.
New Jersey Security and Financial Empowerment Act
The New Jersey Security and Financial Empowerment Act (NJ SAFE Act) requires employers with 25 or more employees to provide up to 20 days of unpaid leave to an employee who is a domestic violence or sexual assault victim, or whose child, parent, spouse, domestic partner or civil union partner is a victim. The law prohibits employers from discriminating or retaliating against an employee for exercising his or her rights under the NJ SAFE Act. See Employee Management > Employee Handbooks - Work Rules - Employee Conduct.
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