June 24, 2019

June 24, 2019

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New Jersey Issues Equal Pay Data Reporting Instructions and Forms

The New Jersey Department of Labor and Workforce Development has issued two reporting forms for the new Diane B. Allen Equal Pay Act: Contracts for Qualifying Services and Contracts for Public Works. To assist contractors with filing the forms, the state also has issued Instructions.

The Equal Pay Act went into effect on July 1, 2018. Among many provisions, the Act requires pay data reporting by employers that provide services to New Jersey and its agencies or that perform construction work on New Jersey public works projects.

  • Service Contractors: Every employer (including those outside New Jersey) providing services to the state or any state agency or instrumentality must report compensation and hours worked data for those employed in in the state working in connection with the contract.

    • The data provided must include: gender, race, job title, ethnicity, occupational and job category (EEO-1 Code), and total compensation.

  • Public Works Contractors: Similarly, every employer (including those outside New Jersey) that enters into a public works contract (not including contracts for goods or products) must provide data. Bottom line: public works contractors must add employee sex, race, and ethnicity data to their weekly Prevailing Wage Act reports.

The Instructions add some clarifying information:

  • As with EEO-1 reports, contractors providing services must file reports annually by March 31 for the preceding year, using employment figures from any pay period in October through December.

  • Also consistent with EEO-1 reporting, if an employee declines to voluntarily self-identify sex, race, or ethnicity, the contractor must use employment records or observer identification to provide the identification.

  • Regarding sex (gender), the state allows a “non-binary category.”

  • For service contractors, the pay data reporting requirements revive those proposed for EEO-1 pay data reporting, which the Trump Administration subsequently rejected.

    • Contractors report for each employee annual earnings from the federal W-2 form, Box 1.

    • Contractors report employee earnings in 12 pay bands.

    • For employees that are not exempt from the Fair Labor Standards Act (FLSA), employers must report the actual number of hours worked by each employee.

    • For FLSA-exempt employees, contractors may report actual hours worked (if tracked) or proxy numbers of 40 hours and 20 hours per week for full- and part-time employees, respectfully.

The Equal Pay Act is not clear regarding how the Department or the Division of Civil Rights may proactively use reported pay data. However, the Department will make the data available, upon request, to “anyone who is or was an employee of the employer during the period of any of the contracts between the employer and any public body, or [to] any authorized representative of the employee.” Thus, regardless of how the state may proactively use the reported pay data, your employees will have access to it for their own purposes.

Please review the actions we suggest employers take to proactively prepare for the Act’s requirements.

Jackson Lewis P.C. © 2019


About this Author

F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...

James M. McDonnell, Jackson Lewis, restrictive covenants lawyer, harassment retaliation attorney

James M. McDonnell is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims.

Mr. McDonnell regularly represents employers in federal and state courts and administrative agencies, including the Equal Employment Opportunity Commission, the New Jersey Division of Civil Rights, the United States Department of Labor, and the New Jersey Department of Labor. Mr. McDonnell has successfully represented clients in matters before the United States Court of Appeals for the Third Circuit and the Appellate Division of the New Jersey Superior Court.

Beth Braddock, Jackson Lewis, Labor attorney, workplace legal counsel, preventive advice lawyer, human resource compliance

Beth L. Braddock is an Associate in the Morristown, New Jersey, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, she served as an Editor of the Rutgers Law Review, was a Teaching Associate for the Legal Research and Writing Program, and was a summer associate at Jackson Lewis. Prior to joining the firm, Ms. Braddock clerked for the Honorable Peter E. Doyne, Assignment Judge, Superior Court of New Jersey,...