Does the New Jersey Law Against Discrimination Protect You If You Live and Work Outside of New Jersey? It Depends…

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Does the New Jersey Law Against Discrimination Protect You If You Live and Work Outside of New Jersey? It Depends…

July 11, 2019

By Francine Foner, Esq., Ty Hyderally, Esq.

            A recent Appellate Division decision upheld the rights of a worker, who lived and worked in Illinois for a New Jersey employer, to sue under New Jersey Law. In 2008, Teaneck, New Jersey-based Phibro Animal Health Corporation (“Phibro”) hired David F. Calabotta (“Calabotta”) as Vice President of Marketing and Technology Deployment for its Illinois subsidiary of Prince Agri. Calabotta worked and lived in Illinois throughout his employment, until he was terminated in 2016. Calabotta alleged that he was wrongfully terminated and denied a promotion to a position in New Jersey because his wife had been diagnosed with terminal breast cancer. Calabotta filed suit in New Jersey against Phibro alleging that his employer’s actions constituted “associational” disability discrimination in violation of the NJLAD. Calabotta v. Phibro Animal Health Corp., 2019 N.J. Super. LEXIS 100, 2019 WL 2619890. An “associational” disability discrimination claim is based upon an employee’s association with a disabled individual.

            Even though he worked and lived in Illinois, Calabotta had good reason to file suit in New Jersey – Illinois has no law protecting employees against associational discrimination, whereas New Jersey case law “has recognized the viability of such an associational claim under the NJLAD.” Id. at *20.  The trial Court found that Illinois law applied to Calabotta’s discrimination claims because he lived in Illinois and worked in Illinois. Since Illinois did not have any legal protection for associational discrimination, the Court then dismissed Plaintiff’s claims.  However, the Appellate Division reversed the trial court, finding that whether the NJLAD applies to a non-resident worker requires consideration of far more than just the place of work and residence. The Appellate Division held that to decide whether the NJLAD applies to a particular non-resident’s claims, it first must conclude that the NJLAD is in conflict with the law of the foreign state. If so, the Court must then consider the intent of the NJLAD to cover certain non-residents seeking work in New Jersey. If such intent exists, the Court must then determine if the NJLAD contains any “statutory directive” on the choice of law to be applied. Finally, the Court must then weigh multiple “choice-of-law” factors to decide if New Jersey or Illinois law should apply.

            Observing that there was a conflict between Illinois law and New Jersey law regarding associational discrimination, the Appellate Division found that the Legislature intended the NJLAD to apply to certain non-resident plaintiffs, holding that “[s]uch an intention about the NJLAD’s breadth may be gleaned from both the words of the statute and the expansive policies that underpin it.” Id. at 22. The Court then observed that there is no statutory directive in the NJLAD on choice-of-law, and therefore it was required to weigh several choice-of-law factors to determine whether or not the NJLAD covered Calabotta’s claims. With respect to Calabotta’s failure to promote claim, the Court found that factors such as the New Jersey location of the new position, the parent company being based in New Jersey, and the need for uniformity in interstate systems in a hiring context, weighed in favor of New Jersey law being applied.  Thus, the Court concluded that there was a “logical and overarching nexus to New Jersey with respect to Plaintiff’s failure to promote claim” and reversed the trial court’s dismissal of that claim.

            With respect to Calabotta’s wrongful discharge claim, the Court found that information was lacking on factors relevant to the choice-of-law analysis, such as, among other things, where the company’s decision to fire Calabotta was made. The Appellate Division therefore vacated the dismissal of Calabotta’s wrongful discharge claim and remanded it to the trial court for reconsideration after sufficient discovery was completed on the relevant factors.

            The Appellate Division also made observations regarding the increase in employees working remotely from multiple locations, which “invariably complicate[s] the application of geographic factors in determining which states’ laws apply to an employment relationship, absent agreement of the parties.” Id. at *42-43.  The Appellate Division opined “we expect employers will attempt to resolve uncertainty about the governing law by including in employment agreements clear and explicit choice-of-law provisions.”  Id. at *34.

            Thus, absent clear and explicit provisions in employment agreements that New Jersey law does not apply, remote employees may have viable discrimination claims under the NJLAD.

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