On March 18, 2019, Governor Murphy signed Bill S121into law, immediately strengthening protections for New Jersey employees with regard to workplace harassment, discrimination, or retaliation. The material below provides an overview of the two ways in which the new law amends the New Jersey Law Against Discrimination (NJLAD).
Employers are Prohibited from Requesting that Employees Waive their Rights under the NJLAD
Many employers request that employees sign arbitration agreements and other contracts that limit their rights in some manner. Bill S121 invalidates provisions in employment contracts that waive employee rights related to harassment, discrimination, or retaliation claims. Examples of the kinds of rights these provisions often request that an employee waive include:
- The right to file a lawsuit
- The right to a jury trial
- The right to seek certain legal remedies
Many employment contracts state that an employee will agree to arbitrate an issue instead of filing a lawsuit, will have a shortened statute of limitations to raise a legal issue, or will even have reduced rights to discovery in a legal case.
Now, such provisions limiting an employee’s rights are considered to be against public policy when the legal matter arises from unlawful harassment, discrimination, or retaliation. If an employer bases an adverse employment action on an employee’s refusal to sign such an agreement, it will now be considered to be unlawful retaliation. Adverse employment actions that are retaliatory actions may include:
- Refusal to hire
- Suspension
- Demotion
- Discharge
- Any other form of discrimination in the terms, conditions, or privileges of employment
Practically speaking, your employer cannot threaten your job if you object to a clause or agreement that requires you to relinquish rights regarding discrimination-related claims.
Many observers expect to see many opponents of this new law provision raise legal challenges to the restrictions on employers. Specifically, many companies or advocacy groups will likely claim the law violates the Federal Arbitration Act (FAA).However, the FAA gives each state the right to determine when contracts may or may not enforceable, and the New Jersey legislature has determined that the above-mentioned clauses are against public policy and unenforceable.
An important argument in favor of upholding the law is that each contract requires a meeting of the minds, and when a contract requires a party to waive certain rights, they must do so knowingly and voluntarily. When someone feels like their only choices are to waive their rights or lose their job, the waiver will not be considered to be knowing and voluntary. Importantly, New Jersey employers are prohibited from taking retaliatory action against employees for refusing to enter into a contract prohibited by the law, so if you’ve been fired or denied employment because you refused to sign such a contract, you should speak to a lawyer immediately.
Employers May No Longer Prohibit Employees from Disclosing Details of Details of Discrimination, Harassment, or Retaliation in Contracts or Settlement Agreements
The other part of the new employment law involves employment contracts or settlement agreements arising from discrimination, harassment, or retaliation issues. Employers often want to include provisions in these agreements that require the employee to keep all information relating to the claim or dispute confidential. News of discriminatory actions can harm an employer’s reputation significantly, so these non-disclosure clauses have been very common. This is especially the case when it comes to pre-suit settlements, as these agreements often occur, in part, to avoid a public lawsuit.
Under the new law, provisions requiring an employee to keep details of discrimination, harassment, or retaliation secret as part of a settlement agreement are unenforceable and against public policy. Provisions of an employment contract that require confidentiality in the event of a discrimination settlement are also unenforceable.
From now on, an employer cannot require an employee to remain silent about the unlawful behavior that occurred at their workplace. If an employee speaks out, the employer will also not be bound by a non-disclosure provision. If an employer tries to take legal action against an employee for revealing details of a harassment or discrimination case, the law now holds the employer liable for the attorney’s fees of the employee.
Many employers may not want to sign settlement agreements if it does not include a confidentiality clause. However, it is important to note that these NDA restrictions do not apply to all aspects of a settlement agreement. For instance, the value of the settlement offer may still be confidential, though there is no longer a guarantee that an employee will keep the events that led to the complaint confidential.
Furthermore, if the parties cannot reach a resolution on their own and the employee files a lawsuit, all of the details will become public knowledge. Therefore, employers are still incentivized to settle meritorious claims out of court. After all, from the employer’s perspective, there is always a chance that an employee will not share information about the case. Once an employee must file a claim in civil court, the employer has no hope for confidentiality, as all court filings are typically part of the public record.
Understanding Your Rights as a New Jersey Employee
When a new or current employer presents you with an arbitration agreement or employment contract including certain rights waivers, they may indicate that signing the agreement and relinquishing your rights is a condition of employment. It is important to understand that this is now an unlawful requirement and you cannot legally lose your job for refusing to sign such an agreement. In addition, an employer may no longer contractually require that you remain silent about discrimination, harassment, or retaliation that you experience at work.
Experiencing harassment, discrimination, or retaliation at work can be difficult enough on its own. New Jersey law has provided increased protections for employees, though this does not necessarily mean that all employers will readily comply and change their practices. The best way to ensure that you properly uphold your rights as an employee is to speak with a skilled New Jersey employment lawyer as soon as you believe you were the victim of discrimination, harassment, or retaliation.
The right lawyer can begin representing your rights from the very start to ensure your employer is held fully accountable and in compliance with all employment laws – including the most recently passed laws. We can identify whether your employer is placing unenforceable restrictions on you or whether you were fired in retaliation for refusing to sign an unenforceable waiver of your rights.
Because employment laws are always changing, it is all too common for employers to continue old practices that now violate the law. It is also easy for an employee to be unaware of their rights and that their employer is violating the law. As an employment law firm, it is our job to stay apprised of all new developments in state and federal law and apply them to each case we handle, so if you have any questions about something that happened to you at work or compliance with the new law, you should contact us immediately.
Contact a New Jersey Employment Attorney Today
At Traub Law, we help New Jersey employees with a wide range of labor and employment law matters. If you would like to learn about your legal rights and options in your specific situation, do not hesitate to call 609-951-2204 or contact us online to discuss your concerns today.