Governor Phil Murphy recently signed Assembly Bill No. 681, amending the state’s workplace bias law by increasing protections against age discrimination. Specifically, it outlaws discrimination in hiring and promotion against those seventy and older. The bill applies to businesses with fewer than twenty employees, thus covering employers not covered by federal law. (The federal Age Discrimination in Employment Act of 1967 applies to employers with twenty or more employees,)
The bill now offers the full protection of New Jersey’s workplace discrimination law to employees and hires seventy and older. Businesses can no longer force an employee to retire at seventy. The bill sets higher standards for a mandatory retirement age for government employees. On the other hand, the bill does not eliminate the state discrimination law’s language permitting government employers to mandate their employees retire upon the attainment of a certain age if the employer can show that the employee is unable to perform their duties adequately.
The bill also expands the remedies available to employees forced to retire to including all those available under New Jersey’s antidiscrimination law and the forums in which employees can file a complaint. Before the bill, employees forced to retire could only seek reinstatement of employment and backpay by filing a complaint with the state’s attorney general.
According to a press release from the governor’s office,
Currently, the [law against discrimination (LAD)] prohibits discrimination and harassment based on actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics, including age. Today’s bill signing amends the LAD to extend protections against age discrimination by:
- Implementing a higher standard for a government employer in terms of setting a mandatory retirement age;
- Eliminating the provision of the law that allows employers not to hire or promote workers over 70 years old;
- Removing the provision within the law that permits higher education institutions to require tenured employees to retire at 70 years old; and
- Expanding the remedies available to an employee required to retire due to age to include all remedies available under the LAD and not just reinstatement of employment with backpay.
The press release quotes Governor Murphy as saying: “Discrimination of any kind has no place in New Jersey. Working across departments, alongside the legislature, and with our partners in advocacy, we are committed to rooting out discrimination and ensuring a stronger and fairer New Jersey for all, regardless of age.” Additionally, “‘As in many places around the country, New Jersey’s workforce is aging, and we need to be proactive in protecting those older workers against age discrimination,’ said Senate Majority Leader Loretta Weinberg, a prime sponsor of the bill.”
Assemblymembers Valerie Vainieri Huttle and Angela McKnight said in a joint statement:
Some will still need to work well into their golden years to be able to live independently. Others may simply want to keep working for their own personal fulfillment. In any case, older workers should be able to retire by their own volition, not because an employer forced them out solely because of their age. This discriminatory practice furthers unfounded assumptions about age and ability and restricts opportunities for older adults in the workforce who may still need a source of income. This new law is long overdue. It’s time to update our state laws to fully prohibit age discrimination in the workplace and open doors for older workers to stay employed.
Employers in New Jersey should amend their policies and practices to adapt to this new law, including implicit bias training. For employers in other states, the question remains whether any state laws apply to them if they have fewer than twenty employees.
In Alabama, there is no state law covering employers with any number of employees. In Alaska, state law covers employers with one or more employees. Arizona has no minimum number of employees to file a claim under state law. Arkansas has a minimum of nine employees to file a claim. California has a minimum of five employees. Colorado has no minimum number of employees to file a claim under state law. Connecticut has a minimum of three employees. Delaware has a minimum of four employees to file a claim. The District of Columbia has no employee minimum to file a claim under its law. In Florida, the minimum number of employees needed to file a claim under state law is fifteen. Like Florida, Georgia has a minimum of fifteen employees to file a claim under state law. Hawaii has no employee minimum to file a claim under state law. Idaho has a minimum of five employees to bring a claim under state law. In Illinois, the minimum number of employees to file a claim under state law is fifteen. In Indiana, the number is six. Iowa has a minimum of four employees to file a claim under state law. In Kansas, a minimum of five employees is needed to file a claim under state law. Kentucky has a minimum of eight employees to file a claim under state law. Louisiana has a minimum of twenty employees to file a claim under state law. In Maine, there is no minimum number of employees needed to file a claim, but if the number is under fifteen the damages available may be limited. In Maryland, the number of employees varies by county. In Massachusetts, the minimum number of employees needed to file a claim under state law is six. In Michigan, there is no employee minimum to file a claim under state law. Minnesota is the same as Michigan. Mississippi is without a state antidiscrimination law. In Missouri, a minimum of six employees is needed to file a claim under state law. In Montana, there is no employee minimum to file a claim under state law. In Nebraska, there is a minimum of fifteen employees. Nevada is the same as Nebraska. In New Hampshire, the minimum is six employees to file a claim under state law. New Jersey has no employee minimum to file a claim under state law. New Mexico has a minimum of four employees to file a claim under state law. Like New Mexico, New York has a minimum of four employees to file a claim. North Carolina passed an antidiscrimination bill in 2016, but it was put under litigation, so employers should check with an attorney as to the law’s status. North Dakota has no employee minimum to file a claim under state law. Ohio has a minimum of four employees to file a claim. Ohio also allows employees to file a public policy claim even if the employer has fewer than four employees. Oklahoma has no employee minimum to file a claim under state law. The same is true for Oregon. Pennsylvania and Rhode Island have a minimum of four employees to file a claim under state law. South Carolina has a minimum of fifteen employees to file a claim under state law. South Dakota’s minimum number is zero. Tennessee has a minimum number of eight. Texas has a minimum of fifteen employees, and so does Utah. Vermont has no employee minimum. Virginia has a minimum of nineteen employees to file a claim under state law. Washington has a minimum of eight employees to file a claim under state law, but there is no employee minimum when it comes to wage discrimination. West Virginia has no employee minimum, and neither does Wisconsin. Wyoming has a minimum of two employees to file a claim under state law.
New Jersey has updated its antidiscrimination law to include age discrimination for those seventy and over. Employers in New Jersey should be sure to be in compliance with the new law. Employers in other states should also make sure that they comply with federal and state (where applicable) anti-age discrimination laws.