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When an Employer Can (and Cannot) Demand Arbitration of Your New Jersey Age Discrimination Case

Best BuySometimes, the difference between a successful outcome and an unsuccessful one can be seemingly very tiny details. A knowledgeable New Jersey discrimination attorney can provide you with the assistance and representation you need when it comes to identifying those details and using them to your maximum advantage. In the case of one electronics store manager who alleged that his employer fired him due to age discrimination, he was able to pursue his case in the court system, rather than in arbitration, since he successfully persuaded the courts that he only acknowledged receipt of the employer’s new arbitration agreement and never affirmatively assented to it.

The plaintiff was the store manager at a “big box” electronics store in Woodbridge. Early in 2016, the employer sought to introduce a new policy that stated that, if an employee had a complaint that was not resolved internally, the appropriate step to launch a formal legal claim was to pursue arbitration, rather than to go to court.

The employer introduced the policy via something called an “eLearning module.” That module presented the terms of the arbitration policy and instructed the employee that, by continuing to work at the store, the employee was agreeing to be governed by the arbitration policy. The end of the module had an electronic checkbox where the employee would acknowledge having read the new policy.

The policy took effect on March 15, 2016. Three weeks later, the employer fired the Woodbridge manager. The employer claimed the termination was a result of an inappropriate comment the manager made. According to the manager, the employer fired him because of his age. The manager sued. The employer asked the court to dismiss and compel the two sides to arbitrate the dispute.

The trial judge agreed with the employer. The Appellate Division, however, sided with the manager. The problem was in the way that the employer introduced the arbitration policy and the rules governing employment contracts (and additions to them). An arbitration policy like the one this employer created is something that essentially asks employees to waive certain legal rights they’d otherwise have. In this scenario, that right is the right to sue in court. In order for such a waiver of an employee’s rights to be enforceable, the law demands that the employee demonstrate his clear and unambiguous agreement. The demonstration must be something explicit and affirmative “that unmistakably reflects the employee’s assent.”

In this case, the employer gave the employee ample notice that the policy involved waiving the right to sue in court. The waiver, however, is still not enforceable unless the employee completes an affirmative acceptance, either by signing or else by “some other explicit indication that [he] intended to abide by that provision.” An employer’s unilateral pronouncement that essentially says, “by not surrendering your job but instead continuing to work here, you are agreeing to these terms” is not sufficient.

This manager did click an electronic box that meant that he acknowledged reading the policy, but, as the Appellate Division made clear, simply acknowledging receipt of a policy doesn’t equate to assent.

The defendant’s case failed for the lack of eight little words. The checkbox at the end of the policy said, “I acknowledge.” This was insufficient and allowed the manager to go to court on his age discrimination claim. Had the wording next to the box said “I acknowledge and agree to the terms of the policy,” the employer would have been able to demand arbitration.

If you believe you’ve been a victim of age discrimination or any other form of discrimination at work, contact the diligent New Jersey age discrimination attorneys at Phillips & Associates. We have been helping workers pursue justice in both state and federal courts for many years. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation with one of our skilled and experienced attorneys to find out how we can help you seek the outcome you deserve.

More blog posts:

Employer’s Use of Numerical Scoring/Ranking System for Selecting New Hires Ultimately Bolsters Candidates’ Age Discrimination Case, New Jersey Employment Lawyer Blog, July 14, 2017

What a Federal Age Discrimination Case from Pennsylvania Can Impart to New Jersey Employers and Employees, New Jersey Employment Lawyer Blog, June 28, 2017

Photo credit: m01229 at Wikimedia Commons.

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