Seyfarth Synopsis: On February 18, 2020, Governor Phil Murphy announced proposed legislation amending New Jersey's anti-workplace harassment laws for both public and private employers. Among other things, the proposed bill clarifies the standard for sexual harassment claims, requires employers to implement anti-discrimination and harassment policies and training, mandates reporting for large employers, and extends the statute of limitations for cases brought under the New Jersey Law Against Discrimination.
New Jersey appears poised to join a number of other states, including New York, which have expanded legal protections for discrimination and harassment in the workplace in the wake of the #MeToo movement. Following a year-long review of New Jersey's discrimination laws by the New Jersey Division on Civil Rights ("DCR") (and publication of a report containing recommendations for preventing sexual harassment), on February 18, 2020 Governor Phil Murphy announced the proposed legislation. Not unexpected in the wake of his commitment in his State of the State Address to bring sweeping changes to New Jersey's workplace culture, the legislation is being touted as an "overhaul" of the discrimination laws.
In brief, the proposed legislation addresses the following:
- Standard for hostile work environment: Codifies the standard for hostile work environment harassment claims as set forth in certain enumerated court decisions (and expressly disavows case law interpretations that differ from this standard). Addresses the severe or pervasive standard, including the fact that a single incident can create a hostile work environment and that harassment need not involve physical contact.
- Mandatory anti-discrimination and harassment policy: Requires 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 includes specific topics that must be addressed, contains a list of criteria for dissemination of the policy, requires annual review of the policy, and adds additional requirements for employers based on size.
- Mandatory training: Requires employers provide employees with interactive workplace training on unlawful discrimination and harassment, including sexual harassment. Under the proposed law, all new employees must be trained within 90 days of initial hire and all employees must be trained at least once every two years. The proposed law also includes minimum requirements as to content and additional training requirements for supervisors.
- Mandatory reporting: Employers with 50 or more employees will be required to collect and annually report to the DCR data on complaints received regarding unlawful workplace discrimination or harassment, including sexual harassment.
- Extends statute of limitations: the law extends the statute of limitation for cases brought under LAD from two years to three years and the statute of limitations for filing a complaint with DCR from 180 days to one year.
- Broadens the definition of employee: the law adds domestic workers and unpaid interns to employees protected by LAD.
It is expected that the proposed legislation will be introduced shortly by Senate Majority Leader Loretta Weinberg, who was announced as the sponsor of the legislation.
Takeaways
Employers should be aware of these pending changes. If enacted, most employers with operations in New Jersey or remote workers based in New Jersey will need to review and revise existing policies and training materials. Large employers will also need to be prepared to undertake the mandatory reporting requirement.
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