United States: Mind The Gap: How To Navigate Pay Disparity And Comply With Equal Pay Requirements

Last Updated: September 16 2019
Article by Theresa A. Kelly and Alba V. Aviles

This summer marked the first anniversary of the effective date of New Jersey's Diane B. Allen Equal Pay Act (NJ Equal Pay Act), which amended the New Jersey Law Against Discrimination (NJLAD) to prohibit employers from discriminating against employees in compensation practices based on all the protected categories under the NJLAD. Unlike the federal Equal Pay Act and other states' laws that only prohibit pay discrimination based on gender, the NJ Equal Pay Act has broad application to all the protected categories under the NJLAD, which include race, creed, color, national origin, ancestry, age, marital status, civil union status, affectional or sexual orientation, sex, gender identity or expression, disability, and pregnancy.

Summary of the NJ Equal Pay Act

Notwithstanding the broad coverage and protections under the NJ Equal Pay Act, the law permits employers to differentiate pay among similarly situated employees under limited circumstances, such as a result of seniority or merit-based systems. The NJ Equal Pay Act also allows employers to differentiate pay among peers if they can demonstrate the following:

  1. The differences in compensation are based on "bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production."

  2. The factors "are not based on, and do not perpetuate, a differential in compensation based on sex or another characteristic of members of a protected class."

  3. "[E]ach of the factors is applied reasonably."

  4. "[O]ne or more of the factors account for the entire wage differential."

  5. The factors "are job-related with respect to the position in question and based on a legitimate business necessity."

Notably, the NJ Equal Pay Act also prohibits employers from differentiating employee compensation based solely on geography. The act expressly states that the comparison of wage rates must be "based on wage rates in all of an employer's operations or facilities." With this legal landscape, on July 25, New Jersey amended the NJLAD, prohibiting private employers from asking prospective employees about their salary history before making an offer of employment, which is effective January 1, 2020.

Similar equal pay laws have been enacted in other states, including Massachusetts, Connecticut, and New York. Unlike the all-encompassing NJ Equal Pay Act, the laws in Massachusetts and Connecticut target the issue of pay equality based on gender. Although it is not as expansive as the NJ Equal Pay Act, the New York Equal Pay for All Act will prohibit differential pay based on a protected class.

How to Conduct an Equal Pay Audit

Employers should consider performing an equal pay audit to ensure they are complying with applicable pay equity laws. First, employers should determine the scope of the audit, considering questions such as the following:

  • Who will conduct the audit? Will it be an internal group or outside counsel?

  • Will the audit be protected by attorney-client privilege? If yes, consider who will handle communications with business managers and Human Resources.

  • What groups will be audited?

  • What data will be reviewed and by whom?

  • Do certain groups within the organization pose a higher risk than others?

While at first blush employers may be inclined to have an internal group perform a pay audit, there are substantial risks in this approach. For instance, any results in connection with the pay audit may be discoverable in future litigation. On the other hand, hiring outside counsel to render legal advice in connection with the pay audit may protect the employer under attorney-client privilege.

Second, once the scope is determined, the data must be gathered. Data may include:

  • job descriptions;

  • employee observations or testimonials regarding daily duties;

  • tenure;

  • seniority;

  • years of experience;

  • salary, bonus, stock, equity, etc.; and

  • performance evaluations.

Employers should also consider the number of years of data to review. For example, reviewing data for a single year may not provide enough information for the employer to evaluate risk. Rather, reviewing at least two to three years' data may be necessary.

Third, organize the data into groups of similarly-situated employees. Analyze the data and determine whether there are any patterns or commonalities among the individuals in the group, including membership in protected categories. It is crucial to look beyond the surface to ensure that implicit or explicit biases are not the basis for any differences in compensation. As stated above, the NJ Equal Pay Act defines the limited circumstances when compensation may vary for similarly situated work.

Finally, if pay inequity exists without legal justification, employers will need to assess their next steps. Depending on the number of affected individuals, employers may decide to address pay disparities individually or issue communications to address compensation differences for a larger group.

In summary, the number of states with equal pay laws in effect has steadily increased in recent years, and more laws on this issue are likely to come. Employers are encouraged to proactively examine pay disparities to minimize risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions