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When a New Jersey Employee Can Avoid Being Bound by the Employer’s Arbitration Agreement

The New Jersey Law Against Discrimination provides protection to many types of New Jersey workers. Most people know that you can sue for discrimination based upon race or gender. However, what discrimination based upon being a divorcee? Or being a recovering drug addict? A recent case involving a semi-famous investment broker offered some useful knowledge in this area of less-well-known protected classes, as well as situations in which you can take your claim to court even if your employer put an arbitration agreement in place. Both of these issues come back to one fundamental lesson: if you believe you were the victim of improper discrimination at work, contact a knowledgeable New Jersey discrimination attorney right away. Even if you are not sure if you have a case, your attorney can give you beneficial information and also potentially provide advantageous strategies for your case.

The employee in the recent discrimination case, Craig, had been many things in his life. In his younger years, he was a somewhat notorious event crasher, having “crashed” the Grammy awards, the opening night of The Phantom of the Opera on Broadway and backstage at the Live Aid benefit concert in Philadelphia. Craig was a successful broker, having amassed a decades-long Wall Street career. Craig was also a recovered addict. Having achieved a degree of notoriety for his crashing adventures, Craig decided to publish his biography in 2017.

Before the book was released, the broker, who was a manager at his employer’s Red Bank office, presented the memoir to the investment bank. Even though the broker’s intoxicated exploits happened in the 1980s and he entered recovery in 1990 (16 years before he started working for the employer,) the employer responded very negatively to the book. The employer allegedly demanded changes to the manuscript and also made threats to the broker’s employment. Just a few months later, the employer fired the broker.

The broker fought back by filing a lawsuit under the LAD. The petition claimed that the employer discriminated against him based upon his status as a recovered addict, which is a protected class under the LAD. The employer responded by getting the case moved from state court to federal court and then asking the federal judge to issue an order forcing the two sides to arbitrate their dispute.

The broker opposed arbitration, arguing that there was no valid arbitration agreement between the two sides. While arbitration can be a useful way of resolving disputes, there are many reasons why an employee might prefer to present his/her case in front of a court rather than an arbitrator. Many employers have arbitration agreements but, depending on how the employer went about getting the employees’ acquiescence to the agreement, that agreement may not be enforceable in a court of law.

Proof of a lack of pro-active acceptance is key 

Specifically, if an employer creates a system of “passive acceptance” of an arbitration agreement, the agreement may not be valid, depending on the degree of passivity. In Craig’s case, his employer sent out a group email stating that it was expanding its “Convenient Access to Resolutions for Employees” program. The email contained a link to the revised handbook and the arbitration agreement. The body of the email stated that the program was mandatory for all employees who did not pro-actively opt out. It also stated that the employee’s continued employment without affirmatively opting out was considered acceptance of the agreement.

The federal judge said this wasn’t enough to demonstrate acceptance. In Craig’s case, his argument was that he did not recall receiving or viewing the email, or opening the link contained in the message. That argument was enough to raise an “issue of fact” which meant that the broker was entitled to take his case to trial.

Craig’s case was different from other cases that had ended in rulings favoring the employers because, in those cases, the employer required employees to electronically review forms and/or submit an electronic form acknowledging that the employee had reviewed and accepted the arbitration agreement.

If you have suffered discrimination at work, you need to make sure you have experienced legal representation on your side fighting for your rights. The skilled New Jersey employment attorneys at Phillips & Associates have spent many years working to help our clients get the compensation they deserve. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.

More blog posts:

The New Jersey Law Against Discrimination: What It Means for You as a Worker in the Garden State, New Jersey Employment Lawyer Blog, March 23, 2018

When You Should (or Shouldn’t) Agree to Arbitrate Your New Jersey Employment Discrimination Case, New Jersey Employment Lawyer Blog, Feb. 13, 2018

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