On June 7, 2018, the New Jersey Senate passed S-121, which among others, would prohibit the waiver of “any substantive or procedural right or remedy” relating to claims under the New Jersey Law Against Discrimination, and would prohibit employers from having non-disclosure provisions in settlement agreements involving disputes under the LAD.
Specifically, the bill provides that “a provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.” In addition, the bill states that “no right or remedy under the ‘Law Against Discrimination’ or any other statute or case law shall be prospectively waived.” Therefore, in essence, this bill would prohibit the prospective waiver of jury trials in disputes under the LAD. Moreover, the bill would further limit the enforceability of arbitration agreements (which waive an employee’s right to a jury trial) regarding employment disputes under the LAD. This aspect of the bill would be a significant win for employees given that the enforceability of agreements that waive the right to a jury trial are often contentious disputes in employment law matters.
In addition, the bill contains a provision that would eliminate non-disclosure provisions in agreements, including settlement agreements. Specifically, the bill provides that “a provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment shall be deemed against public policy and unenforceable.” If enacted, this aspect of the bill would fundamentally change the negotiation of discrimination and harassment claims since confidentiality is usually a standard term required by employers.
The bill also prohibits an employer from taking any retaliatory action (such as a discharge, suspension, or demotion, etc.) against an employee who refuses to enter in an agreement that contains a provision deemed to be contrary to public policy and unenforceable; and affords aggrieved individuals the right to commence legal action in the Superior Court of New Jersey.