On October 5, 2021, Governor Phil Murphy signed a new law that greatly expands the protections afforded to older workers under the New Jersey Law Against Discrimination (“NJLAD”) These Amendments took effect immediately, meaning older workers are now already afforded these enhanced protections against workplace discrimination. As a result, employers today must promptly reevaluate both their hiring practices and any policies requiring that older workers retire when they reach a prescribed age.
The scope of the recent amendments is broad, and change the protections already afforded to older employees under the NJLAD in the following significant ways:
- Repeals Section 11 of the NJLAD which allowed employers to refuse to accept for employment or to promote individuals over 70 years old. The elimination of this provision broadens employment opportunities for older individuals over 70 years of age, and as a practical matter, means that age can no longer be used as a factor in the hiring or promotion process.
- Amends Section 5 of the NJLAD that limited the remedies applicable when an employee claimed that he/she was unlawfully forced to retire. Before this law, those employees were required to file a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest. The revised provision now makes available all of the remedies provided by “any applicable law,” subjecting employers who engage in such age discrimination to greater risk of legal exposure through these enhanced remedies.
- Eliminates the statutory provision that permitted government employers to force mandatory retirement at a certain age if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue to provide employment opportunities to older workers as long as the employees can perform their official duties and responsibilities.
- Repeals Section 4 of the NJLAD which previously stated that “an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.” Under this amendment, mandatory retirement policies based on age at higher education institutions are now no longer permitted.
One question that was prominent upon the passage of these amendments was how this new law would apply to well established mandatory retirement requirements that applied to certain categories of public employees. Significantly, the new law does not change the mandatory requirement age of 70 for State court judges at any level or for police and fire departments.
In light of these recent changes, employers should review all relevant employment policies to ensure that those policies remain consistent with these new legal requirements and do not run afoul of the added protections for older employees under the newly revised NJLAD.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.