Hyderally & Associates, P.C. June 2017 Newsletter
UNDERSTANDING THE TIMEFRAMES FOR FILING EMPLOYMENT CLAIMS
An employee who has a potential claim against his employer must be cognizant of the deadline to bring the particular claim. Different types of employment claims are governed by different deadlines by which such claims must be filed. Similarly, some claims may require as a prerequisite that the employee first exhaust other remedies. These procedural issues are just as important as the substance of the claim itself, as if they are not followed, a claim may be subject to dismissal.
In New Jersey, employees may elect to bring claims for violation of the New Jersey Law Against Discrimination (“LAD”) in the New Jersey Division of Civil Rights (“DCR”), or the New Jersey Superior Court. The LAD contains an “election of remedies” provision that requires a complainant to make an election of remedies between either the DCR or the Superior Court. N.J.S.A. 10:5-13. The deadline for filing a discrimination claim under the LAD with the DCR is within six months of the adverse action, while the deadline, or statute of limitations, to bring a claim under the LAD in New Jersey Superior Court is within two years of the adverse action.
The initial selection of the DCR, however, does not itself bar the Plaintiff from filing in Superior Court. Rather, only while the DCR action is pending, or after the DCR has rendered a “final determination” is the Plaintiff barred from pursuing an action under the LAD in Superior Court. Specifically, the applicable provision states:
[T]he procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.
Thus, once the DCR renders a final decision on an employee’s discrimination claim, the employee is precluded from then also pursuing the claim in New Jersey Superior Court. However, if the DCR has not yet rendered a final decision, the employee can withdraw from the DCR, and file the claim in Superior Court, for up to 2 years from the adverse action. Rodriguez v. Raymour Furniture Co., Inc., 225 N.J. 343, 358 (2016); Cornacchiulo v. Alternative Inv. Solutions, L.L.C., 2012 N.J. Super. Unpub. LEXIS 1415, *6-7 (App. Div., June 19, 2012), citing Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 656 (1996); Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 505 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995); Wilson Wilson v. Wal-Mart Stores, 158 N.J. 263, 270 (1999).
Complicating things further, different time frames apply to federal discrimination claims under federal discrimination laws, such as Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(a) and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Such federal discrimination claims may be pursued in Federal District Court only after the employee has filed a claim with the federal Equal Employment Opportunity Commission (“EEOC”) and has received a right to sue letter from the EEOC. The deadline to bring a claim with the EEOC in New Jersey is 300 calendar days from the day the discrimination took place. If the EEOC does not make a determination, or finds no cause, and issues a Right to Sue notice, then the employee can pursue those claims in Federal District Court, within 90 days of the Right to Sue notice. 42 U.S.C.S. § 2000e-5(f)(1).
Complicating things even further, when a party files a claim with the EEOC, it is automatically dual filed with the DCR, although oftentimes employees do not realize that this has occurred. Thus, if an employee subsequently decides to pursue New Jersey state claims under the LAD in Superior Court, the simultaneously filed DCR matter must be withdrawn prior to the DCR rendering a final determination. Otherwise, the employee will be barred from pursuing LAD claims in Superior Court.
For the layperson, navigating the statutory deadlines for filing discrimination claims may appear confusing, but what is clear is that they cannot be ignored without the risk of losing the ability to pursue a claim.
By Ty Hyderally, Esq. and Francine Foner, Esq.
Hyderally & Associates, P.C.
EMPLOYERS MAY NOT REQUIRE EMPLOYEES TO
SHORTEN THE TWO-YEAR STATUTE OF LIMITATIONS FOR LAD CLAIMS
In a case of first impression, The New Jersey Supreme Court ruled in Rodriguez v. Raymour Furniture Co., Inc., 225 N.J. 343 (2016), that employers may not shorten the statute of limitations for discrimination claims under New Jersey Law Against Discrimination (N.J.S.A. 10:15-12) (“LAD”) through an employment contract. In Rodriguez,Plaintiff signed a job application which clearly stated, in bold and capitalized font, that any claim or lawsuit against the company must be filed within six months of the employment action that is the subject of the claim or lawsuit. Plaintiff testified that he did not understand the meaning of the provision, however, he did not ask any questions and signed the application. Id. at 348-49. Seven months after Plaintiff’s termination he filed a lawsuit against the company for violation of the LAD based on actual or perceived disability. Id. at 350. Both the Trial Court and Appellate Division granted the company’s motion for summary judgment and dismissed the case because Plaintiff filed the complaint beyond the six-month deadline contained in the employment application. Id. at 350 -51. The Appellate Division affirmed the Trial Court’s ruling that the contractual provision was enforceable because it was clear and unambiguous, Plaintiff had ample time to review it, and six months was a reasonable amount of time. Id. at 351.
The New Jersey Supreme Court reversed. The Supreme Court held that an employer cannot shorten a statute of limitations for LAD claims by private agreement, as that would frustrate the purpose underlying the LAD of eradicating discrimination in the workplace. Id. at 346. In reaching its decision, the Rodriguez Court considered that a six-month statutory period would result in an attorney having to file suit under extreme time pressure, without being able to conduct a thorough investigation as to the claims. Id. at 359. In addition, such a shortened statute of limitations could potentially increase the number of claims filed, because terminated employees would be compelled to quickly file their claims, without having sufficient time to reflect on whether they should proceed with a lawsuit. Id. Writing for a unanimous Court, Justice LaVecchia further opined that such a shortened time period in which to bring LAD claims would result in employers having less time to “investigate [workplace complaints], and respond appropriately to limit their liability.” Id. at 363, citing Aguas v. State, 220 N.J. 494, 515-17 (2015).
The Court further observed that the alternative relief available to victims of discrimination in the New Jersey Division of Civil Rights (“DCR”), which sets a six-month time limit to file claims, does not alter a party’s rights under the LAD to elect the remedies provided thereunder, including the 2-year statute of limitations period. Id. at 358. The Court opined that the dual statutory scheme is intended to permit a party to elect commencing an action in the DCR within six months of the adverse action, and if desired, to withdraw from the DCR before a final decision is rendered, and pursue the claim in Superior Court up to the 2-year limit under the LAD. Id. The Court further took note of the fact that since the LAD was interpreted as having a 2-year statute of limitations 23 years ago, the Legislature has not amended the LAD to shorten the statutory period, despite the many other amendments made to the LAD during that time period. Id. at 357-58. Thus, shortening the LAD’s 2-year statute of limitations would thwart that statutory scheme. Id. at 362.
The Rodriguez Court endeavored to strike a balance between the freedom to contract and public policy. The Court distinguished a private contract to submit a LAD claim to an alternative dispute resolution process as being consistent with public policy underlying the LAD, as long as the contract does not otherwise remove any substantive rights granted by the LAD. In contrast, the Court observed that contracting to shorten the statute of limitations to six months would result in forcing litigants to choose between filing with the DCR or filing with the Superior Court, and foreclose the option of choosing to begin with a filing with DCR. However, the Rodriguez Court left open the possibility of employers being able to shorten other statutes of limitations, by limiting its holding strictly to LAD claims in non-negotiable employee applications. Id. at 367.
By Ty Hyderally, Esq., Francine Foner, Esq., and Jacqueline Larsen, Law Clerk
Hyderally & Associates, P.C.
NJ LEGISLATURE INTRODUCES BILL TO LIMIT EMPLOYEE WAIVERS
In response to the Supreme Court’s decision in Rodriguez, as well as other New Jersey Supreme Court cases addressing waiver of rights in employment arbitration provisions, a bill was recently introduced in the New Jersey Legislature that appears intended to codify these rulings. NJ Bill A-4173, provides, in pertinent part, that it is unlawful for an employer to “(1) require an employee or prospective employee to make the waiver of rights … including the right to a jury trial; (2) request any employee or prospective employee to waive any claims prior to the existence of an actual dispute…” N.J. Bill A-4173 (t)(1) – (2). This bill is intended to codify New Jersey Supreme Court holdings such as Montells v. Haynes, 133 N.J. 282 (1993) and Rodriguez v. Raymours Furniture Co., 225 N.J. 343 (2016). In Montells, the Courtheld that the applicable statute of limitations for claims under the New Jersey Law Against Discrimination (“LAD”) is two years. Montells, supra at 282.
The Court in Rodriguez held that an employment contract cannot alter the two-year statute of limitations for actions brought under the LAD. Rodriguez, supra at 344. This bill is also consistent with the New Jersey Supreme Court’s holding in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014). In Atalese, the New Jersey Supreme Court analyzed the language in the arbitration clause and held that arbitration of statutory or constitutional claims may not be compelled where the arbitration clause does not contain a clear and unambiguous waiver of the right to bring a claim to court or to have a jury resolve a dispute. Id. at 447.
Bill A-4173 also proposes amending the LAD to prohibit an employer from requiring an employee or prospective employee to waive his or her rights to a trial by jury under the LAD as a condition of employment. A-4173 (t)(1). The Seventh Amendment to the Constitution guarantees all citizens the right to trial by jury, however, in recent years it has become increasingly common for employers to require employees to submit to alternative dispute resolution, specifically arbitration. However, before the bill was voted on by the Judiciary Committee on May 18, 2017, the portion addressing mandatory arbitration agreements was removed. (A-4173; 2016-2017 Reg. Sess. New Jersey State Assembly).
At this point it is unclear whether the amended version will become law. What is clear, however, is that both versions of the Bill provide that LAD claims have a two-year statute of limitations that is unalterable.
By Ty Hyderally, Esq., Francine Foner, Esq., and Jacqueline Larsen, Law Clerk
These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.