New Jersey’s Law Against Discrimination[1], commonly known as the “LAD,” prohibits discrimination against New Jersey inhabitants because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, sexual orientation, marital status, familial status, disability, military status or nationality in connection with matters of employment, public accommodation, public housing or the sale or leasing of real estate. More specifically, it is often the principal basis for the assertion of claims based upon age or sexual discrimination brought against New Jersey employers by their in-state employees.
A recent decision from the Appellate Division of the New Jersey Superior Court, Trevejo v. Legal Cost Control, Inc. and John Marquess[2], has potentially broadened the category of potential employment plaintiffs under the LAD to out of state employees seeking recourse against their New Jersey-based employers. Plaintiff Travejo, a resident of Massachusetts, “tele-commuted” to her job in Haddonfield, New Jersey with Legal Cost Control, Inc., a business designed to assist in the management and reduction of its clients’ legal and accounting fees. Following her termination by LCC, Plaintiff filed a LAD claim for age discrimination in New Jersey state court. After Defendants moved to dismiss the claim, the motion judge granted Plaintiff the right to take limited discovery on the issue of Plaintiff’s status to assert a claim under the LAD. Following (improperly) limited depositions of the defendants, they refiled their motion to dismiss, and the Trial Court dismissed Travejo’s case.
However, upon appeal, the Appellate Division reversed the initial decision, and sent the case back to the Trial Court for further consideration of the issue as to who is protected under the LAD. “Based upon current computer technology and the forward thinking concept of ‘telecommuting’,” the Appellate Division concluded that the geographic reach of the LAD presented “a novel question of law that involves highly significant policy consideration.” Among those facts that a trial court might determine to be of importance in deciding this issue would be, for example, where Plaintiff’s co-employees worked; the extent to which such other employees worked from home; the nature of the software used by Plaintiff and other company employees; the location of the server used to connect Plaintiff and other employees to the employer’s office in New Jersey; the location of the company’s internet service provider; the location of the individual or individuals within defendant who made the decision to terminate the Plaintiff’s employment and the basis for that decision; other issues relevant to Plaintiff’s contacts with New Jersey (e.g., daily conference calls with company employees in New Jersey, how frequently Plaintiff traveled to New Jersey for business purposes); and, perhaps most significantly, where the alleged discriminatory conduct occurred.
Notwithstanding that the legislative findings and declaration of the LAD uses the word “inhabitant,” because the substantive sections of the LAD utilizes the word “person,” the Appellate Court concluded that the Legislature intended that the broad remedial purposes of the LAD be afforded to non-residents who experienced discrimination in New Jersey. The Appellate Court sent the case back to the Trial Court for its consideration upon a full factual record dealing with the above issues.
The broad implications of this decision cannot be overstated. New Jersey employers with out-of-state employees (e.g., sales and/or service networks) may now find that those employees may assert benefits under the LAD, one of the more progressive anti-discrimination statutes in the country. And while the merits of Ms. Travejo’s claims remain to be determined by a New Jersey court, there would appear to be no reason why an out-of-state plaintiff might not bring his/her claims in an out-of-state forum, claiming the benefit of LAD coverage under a choice of law analysis based upon the location of where the injurious conduct (allegedly) occurred. Employers with regional or national networks of telecommuting employees may anticipate defending against LAD claims in any and all jurisdictions where their employees reside, based upon New Jersey’s perceived legislative interest in “protecting the public’s strong public interest in a discrimination free workplace.[3]”
Rick Shulman
Contact Rick at rshulman@pricemeese.com should you have questions about this article.
[1] N.J.S.A. 10:5-1 to -42.
[2] Docket No. A-1377-16T4 (April 2, 2018).
[3] Id. at p. 7.
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