New Protections for Workers Over the Age of 70

New Jersey has one of the most comprehensive statutes protecting employees against discrimination in the workplace.

Last fall, Gov. Phil Murphy signed legislation expanding these protections even further by amending New Jersey’s Law Against Discrimination (NJLAD) to prohibit private-sector employers from discriminating against employees over the age of 70. Specifically, the legislation eliminates a provision of the NJLAD that previously permitted employers to refuse to hire or promote workers over 70. It further expands the remedies available to an employee who is forced to retire due to age.

Owners of businesses of all sizes in New Jersey need to be aware of these amendments and take steps, if necessary, to bring their hiring, promotion and retirement practices into full compliance.

History of the NJLAD: The NJLAD was originally enacted in 1945. While not included in the original list of protected classes, in 1962 the NJLAD was amended to recognize age as a protected status.

In 1985, the NJLAD was amended again to clarify that while employers were prohibited from terminating or demoting employees based on their age, they were nonetheless allowed to “refuse to accept employment or to promote any person over 70 years of age.” The 1985 amendment also limited the remedies available to employees forced to retire as a result of age to back pay only. While New Jersey continued to broaden the NJLAD and expand protections to a number of groups over the following years, the limited protections against age discrimination were never modified, thereby placing it on separate, inferior footing to the state’s other protected categories.

Amendments to the NJLAD: On October 5, 2021, New Jersey sought to remedy that contradiction and place age on equal terms with the state’s other recognized protected classes. Sponsors of the change pointed to an aging workforce in support of amending the NJLAD, noting that older individuals are continuing to work either due to a financial need or because they still have the energy, skills and experience to offer the workforce.

The adopted amendments eliminate the provision in the NJLAD that allowed employers to refuse to hire or promote an individual for the sole reason that the person is over the age of 70. Additionally, the amendments allow victims of age discrimination to obtain all the remedies available under the NJLAD, including compensatory and punitive damages, reinstatement of back pay, attorneys’ fees, and interest.

Takeaway: The amendments to the NJLAD took effect immediately. It is critical that business owners review their hiring, promotion and retirement policies to ensure compliance with these changes. Employers must be mindful of these amendments when making any personnel decisions affecting older workers to ensure they are not based on impermissible criteria linked to age.

About the Author: Lisa Gingeleskie is a partner with Lindabury, McCormick, Estabrook & Cooper, P.C. (www.lindabury.com), based in Westfield. She concentrates her practice in the areas of labor and employment law as well as ERISA and employee benefits law. She can be reached at [email protected].

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