Tagged: New Jersey Law Against Discrimination (LAD)

New Jersey Court Invalidates Arbitration Agreement that Fails to Designate an Arbitration Forum

New Jersey Court Invalidates Arbitration Agreement that Fails to Designate an Arbitration Forum

The New Jersey courts have consistently held that the mutual assent necessary to support a binding arbitration agreement is not present where the agreement does not sufficiently put the parties on notice that, by agreeing to arbitrate, they are giving up the right to have their dispute resolved in a judicial forum and are waiving whatever rights they might have to a jury trial. In Flanzman v. Jenny Craig, Inc., the New Jersey Appellate Division has now held that the mutual assent necessary to support a binding arbitration agreement will also be found lacking when the agreement does not designate the forum in which the arbitration will take place and otherwise fails to define the arbitration process. Background The plaintiff, Marilyn Flanzman, after being terminated from her position as a weight loss counselor for the defendant, a weight loss and nutrition company, brought suit in Superior Court, Law Division under the New Jersey Law Against Discrimination, alleging age discrimination and harassment. The defendant moved to compel arbitration based on an arbitration agreement into which the parties had entered during the plaintiff’s employment, which, in relevant part, stated: Any and all claims or controversies arising out of or relating to [plaintiff’s]...

Federal Courts Uphold Arbitration Agreements Via Email

Federal Courts Uphold Arbitration Agreements Via Email

Recently, federal district courts in New York and New Jersey turned aside employee attacks on arbitration agreements challenged on the grounds that the employer’s communication of its arbitration policy via email was inadequate. The courts in both Lockette v. Morgan Stanley and Schmell v. Morgan Stanley held that the employees’ assertions that they never saw the email forwarding the terms of the arbitration agreement were insufficient to overcome the employer’s evidence that the email had been delivered to the employees’ email inboxes. Lockette John Lockette sued Morgan Stanley in federal court in New York after Morgan Stanley terminated his employment in 2016. Lockette alleged he had been the victim of race discrimination and retaliation in violation of federal law. The company moved to compel arbitration. Prior to 2015, the company had in place an internal dispute resolution program entitled “CARE” (Convenient Access to Resolutions for Employees) for employees registered with FINRA, who could select, but were not required to select, arbitration as a means of resolving statutory discrimination claims. In 2015, however, the company expanded the CARE program to cover all employees and to require the arbitration of employment claims, including discrimination claims, among others. Under the terms of the expanded program,...

Arbitration Clause’s Punitive Damages Waiver Held Unenforceable Under the LAD

Arbitration Clause’s Punitive Damages Waiver Held Unenforceable Under the LAD

In Roman v. Bergen Logistics, LLC, the Appellate Division recently held that a plaintiff was required to arbitrate her claims of sexual harassment and retaliation with her former employer. The court also held, however, that the arbitration agreement’s contractual provision that barred the employee’s access to punitive damages was unenforceable. Background Plaintiff Milagros Roman was hired by the defendant, Bergen Logistics, as a human resources generalist. She signed an arbitration agreement at the outset of her employment. In addition to requiring Roman to arbitrate any and all claims related to her employment, the arbitration agreement compelled her to waive any claim for punitive damages. After her termination, Roman filed a complaint in New Jersey Superior Court alleging that her former supervisor sexually harassed her, created a hostile work environment, and retaliated against her in violation of the New Jersey Law Against Discrimination (LAD). The defendants moved to dismiss Roman’s complaint and compel her to arbitrate her claims. The Law Division found that Roman knowingly signed the arbitration agreement and that the agreement contained an unambiguous waiver of claims for punitive damages. Accordingly, that court held that Roman was required to submit her claims to arbitration and could not seek punitive...

Governor Murphy Signs New Jersey Pay Equity Legislation

Governor Murphy Signs New Jersey Pay Equity Legislation

Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act. The new law will go into effect July 1, 2018. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. If you have any questions regarding how to comply with New Jersey’s new pay equity law, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department. Suzanne Herrmann Brock is Counsel in the Gibbons Employment & Labor Law Department.

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

In response to the recent spotlight on sexual abuse and harassment claims in the workplace and the #MeToo movement, the federal government and numerous states, including New Jersey, have focused attention on the use of nondisclosure provisions in settlement agreements involving claims of sexual harassment and assault. As we previously reported, the Tax Cuts and Job Bills Act was passed in December 2017 and includes a provision that bars any settlement or payment related to claims of sexual harassment or sexual abuse from being deducted as a business expense if the payments are subject to a nondisclosure agreement. While the federal tax bill aims to discourage the use of nondisclosure agreements, the proposed New Jersey legislation initially provided an outright ban on such agreements. At the time of its first introduction during the prior legislative session in December 2017, Senator Loretta Weinberg’s proposed bill prohibited New Jersey employers from including “a provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” The bill is unique because it is not limited to sexual harassment or abuse claims, but rather would apply to any type of discrimination,...

New Jersey Legislature Passes Sweeping Pay Equity Legislation

New Jersey Legislature Passes Sweeping Pay Equity Legislation

Yesterday, the New Jersey Senate and Assembly passed comprehensive pay equity legislation. The legislation passed both houses with significant bi-partisan support and it is expected that Governor Murphy will soon sign the legislation into law. Once in effect, the legislation, which amends the New Jersey Law Against Discrimination (“the LAD”), will be the most wide-ranging pay equity law in the United States. Significantly, unlike most pay equity laws passed in recent years by other states which target unlawful pay discrimination of women, the New Jersey law will prohibit pay discrimination of employees in any protected class. Specifically, the legislation makes it an unlawful employment practice to discriminate against a member of any protected class by compensating the employee at a lesser rate of pay, benefits, or other forms of compensation than an employee who is not a member of the protected class for “substantially similar work.” The “substantially similar” standard, which diverges from the “equal work” standard of the federal Equal Pay Act, mirrors the California Fair Pay Act. Moreover, the legislation provides that comparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities regardless of where located. An employer will be...

Gov. Murphy’s First Executive Order Prohibits State Government from Asking Applicants about Salary History

Gov. Murphy’s First Executive Order Prohibits State Government from Asking Applicants about Salary History

Governor Phil Murphy has signed an executive order which bars state workers from asking job applicants seeking positions with the state about their previous salaries in his first official act after his swearing-in on January 16, 2018. State entities may now only inquire as to an applicant’s past salary history after the entity has made a conditional offer of employment, which includes an explanation of the compensation package being offered to the applicant. The goal of the executive order is to eliminate wage inequalities that result from female employees who accept lower starting salaries and then remain on a lower compensation track, with pay disparities compounding over time. Significantly, at the signing ceremony, the Governor stated that he would sign a bill that extended these same provisions to private sector employers which the legislative sponsors vowed to move quickly to his desk. In fact, legislation has already been introduced that prohibits an employer from inquiring about the salary history of an applicant. Assembly Bill 1094 was introduced on January 9, 2018 by Assemblywoman Joanne Downey (D-11) and referred to the Assembly Labor Committee. Senate Bill 559 was introduced by Senator Nia Gill (D-34) on January 9, 2018 and referred to...

N.J. Supreme Court Invalidates Agreements to Shorten the LAD’s Statute of Limitations 0

N.J. Supreme Court Invalidates Agreements to Shorten the LAD’s Statute of Limitations

On June 15, 2016, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., held that an agreement by an employee to bring claims against his employer within six months of the allegedly wrongful employment action was unenforceable insofar as the agreement applied to claims brought under the New Jersey Law Against Discrimination (“the LAD”). In 1993, the Court had held that New Jersey’s general two-year statute of limitations for personal injury actions provides the appropriate limitations period for LAD claims. In Raymours, the Court ruled that the employer’s attempt to reduce this limitations period to six months undermined the LAD’s specific enforcement scheme for the elimination of discrimination and thus, for public policy reasons, could not be judicially sanctioned. In addition, the Court found that the particular agreement at issue, set forth as part of the boilerplate in the employer’s standard employment application form, constituted an unenforceable contract of adhesion.

New Jersey Appellate Division Requires Arbitration Provisions to Include Specific Waiver of Right to Sue in Court 0

New Jersey Appellate Division Requires Arbitration Provisions to Include Specific Waiver of Right to Sue in Court

Two recent New Jersey Appellate Division decisions have serious implications for employers utilizing or contemplating arbitration provisions. In both decisions – Kelly v. Beverage Works NY Inc., decided on November 26, 2014, and Dispenziere v. Kushner Cos., decided on November 21, 2014 – the Appellate Division relied on the New Jersey Supreme Court’s September decision in Atalese v. U.S. Legal Services Group, which held that an arbitration provision was unenforceable because it lacked “clear and unambiguous language” that the party signing the agreement is waiving its right to sue in court.

New Jersey Appellate Court Upholds Agreements Shortening the Statute of Limitations for Employment-Related Claims 0

New Jersey Appellate Court Upholds Agreements Shortening the Statute of Limitations for Employment-Related Claims

On June 19, 2014, in Rodriguez v. Raymours Furniture Company, Inc., the New Jersey Appellate Division upheld the validity of a provision in an employment application form by which the job applicant agreed that, if hired, he or she would bring any employment-related claim within 6 months after the claim arose. Plaintiff alleged he was terminated because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”) and in retaliation for having filed a workers compensation claim. The Appellate Division held that because the plaintiff brought these claims 9 months after his termination they were barred by the 6-month limitations period in the application form even though they were brought well within the 2-year statute of limitations period otherwise applicable to these types of claims.