UPDATE: Mandatory Nondiscrimination Policies, Training and Reporting: Proposed New Jersey Legislation Would Impose New Obligations on Employers and Lengthen the Limitations Period

On February 18, 2020, Governor Phil Murphy continued his quest to enhance employee protections in New Jersey by announcing proposed legislation aimed at strengthening New Jersey’s already-expansive prohibitions against harassment and discrimination in the New Jersey Law Against Discrimination (NJLAD). According to the proposed legislative findings, the bill was designed to “reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual.” The proposed legislation comes on the heels of a report released by the New Jersey Division on Civil Rights (DCR) this month, Preventing and Eliminating Sexual Harassment in New Jersey, the result of a trio of public hearings held in September 2019. Employers are already scrambling to keep up with legislation directed at protecting call center employees, cracking down on misclassification, and expanding the rights of employees affected by a mass layoff or plant closing.

Here are the highlights from the proposed legislation:

Expanded Definition of Employee. Domestic workers and unpaid interns would be added to the definition of “employees” under the NJLAD and there are specific provisions governing domestic workers.

Extended Time for Filing Claims. The current two-year statute of limitations applicable to claims brought under the NJLAD would be extended to three years. And, the time to file a complaint with the DCR would be extended from 180 days to one year.

Codification of Sexual Harassment Standards. The legislative findings explain that the bill is intended to codify, and disavow, certain court decisions on sexual harassment. Among the favored cases are the Supreme Court of New Jersey’s oft-cited decisions in Lehman v. Toys R Us, Inc. and Taylor v. Metzger.

The bill describes what is necessary to state a hostile work environment claim and the standards that should guide a determination of whether a violation has occurred, both pulled from the cases cited in the legislative findings. Among other things, the bill incorporates a totality of the circumstances standard, makes clear that a single incident can be sufficiently severe to create a triable issue of fact regarding the existence of a hostile work environment, and, while imposing a reasonable person standard, provides that the complainant’s subjective response should be considered as part of the totality of the circumstances. Moreover, the bill states that harassment directed at others may be relevant even if the complainant did not witness the harassing conduct, that physical contact is not required, and that there need not be a loss of tangible job benefits for a violation to occur. The bill also incorporates standards for employer liability.

Mandatory Nondiscrimination Policy. Within one year of its enactment, the legislation would require that all employers adopt a written nondiscrimination policy that “establishes policies and procedures concerning unlawful discrimination and harassment, including sexual harassment, in the workplace…” The legislation outlines the minimum requirements for the policy, most of which are consistent with nondiscrimination policies already in place for many New Jersey employers. Two notable exceptions are the requirement that the policy include the statute of limitations applicable to filing a claim of unlawful discrimination or harassment and directions on how to contact the DCR if a person believes his or her rights were violated. (New York employers likely already have parallel New York-specific requirements in place due to the comprehensive New York City and New York State anti-harassment legislation enacted in 2018. In fact, there are many similarities between the New York legislation and the proposed New Jersey legislation.)

The bill specifies that the nondiscrimination policy must be disseminated annually to all employees and under other specific circumstances, such as when employment begins, to the complainant when a complaint is made, and to an individual who is interviewed as part of an investigation of a complaint about a policy violation. The policy must be reviewed annually to ensure compliance with applicable law. And, the policy must be made available in English, Spanish and “any other language spoken by an employee who does not speak English as their primary language and who has a limited ability or no ability to read, speak, write, or understand English” if the DCR has made a model policy available in that language.

Within six months of enactment, the DCR is required to create a model policy that complies with the requirements and make it available to employers with fewer than 50 employees at no cost. The bill explains how an employer with fewer than 50 employees can satisfy its obligations with respect to policy content, dissemination, and translation requirements, but does not require the use of the model policy.

Employers with 50 or more employees would have some additional obligations to customize their policies to reflect their workplaces and industries. For example, large employers would be required to include multiple reporting channels and an investigation process. Moreover, large employers would be required to post the policy and disseminate it to an employee who is promoted. The law would impose additional translation requirements as well.

Mandatory Training Requirement. Beginning one year from the effective date of the legislation, all New Jersey employers will be required to provide “interactive training” to employees on the employer’s nondiscrimination policy and the prevention of discrimination and harassment in the workplace. According to the definition in the bill, the training must be participatory, but need not be live or facilitated by an in-person instructor unless the employer has 50 or more employees.

As with the mandatory policy, the bill includes minimum requirements for employee and supervisor training. Employers will be required to keep a record of the training for at least three years and the training must be reviewed annually to ensure compliance with applicable laws. The training must also be made available in English and any language spoken by an employee who does not speak English as his primary language and who has a limited ability or no ability to read, speak, write, or understand English if the DCR has made the training available in that language.

Within six months of enactment of the bill, the DCR must develop and make available, at no cost, an online one-hour training module for employees and a two-hour training module for supervisors that satisfy the requirements of the bill and that can be used by employers with fewer than 50 employees. For these small employers, the proposed legislation specifies how they can comply with the training requirements.

Significantly, employers with 50 or more employees are not permitted to use the DCR’s training module. Instead, they are required to provide live, in-person training where participants can ask questions and provide interpretation at the trainings for an employee who does not speak English as their primary language or has a limited ability to read, speak, write, or understand English.

Mandatory Annual Reporting of Complaints to the DCR. Starting one year after the enactment of the bill, employers with 50 or more employees would be required to collect and report data to the DCR on complaints the employer receives regarding workplace discrimination or harassment. A form will be created by the DCR for reporting purposes and will include the total number of complaints filed, the number of substantiated, unsubstantiated, and pending complaints. The information must be broken down by the type of complaint (harassment, discrimination, retaliation) and by protected class. In addition, the employer will be required to maintain records relating to the complaints reported to the DCR for a period of at least three years and make them available to the DCR for inspection upon request.

No Private Right of Action. An employer’s failure to comply with the mandatory policy, training, and reporting requirements would not provide the basis for a complaint to the DCR or a Superior Court filing by a private individual, i.e., no private right of action. Rather, the Attorney General or the director of the DCR can enforce the violations and pursue a penalty or remedy available under the NJLAD. The general citation to the NJLAD in this section of the bill offers no real guidance on what those penalties or remedies might be. Interestingly, the bill provides that an employer’s compliance with the same requirements does not, in and of itself, protect the employer from liability.

Senate Majority Leader Loretta Weinberg is expected to sponsor the bill. Senator Weinberg has expressed her desire to work with Governor Murphy on this and “other changes to current law that will make certain we have made the necessary strides to really offer strong protection.”

There is a lot of information here to digest. Suffice it to say that New Jersey employers with existing policies and training may not have all of the bells and whistles required by this proposed legislation. Employers that have made it this far without a policy or regular training, your future awaits. The members of the Gibbons Workplace Training Academy stand ready to help.