New Jersey Court Considers Whether State Anti-Discrimination Laws Cover “Telecommuting” Employees Outside the State

Employment discrimination has been in the headlines during the past several months. And although New Jersey has long had strict laws banning sex discrimination in the workplace, it is still unclear how these rules apply to non-traditional work arrangements like telecommuting. After all, thanks to computers and smartphones, many employees can work for a New Jersey-based employer from any state. But are those employees entitled to the protections of the New Jersey Law Against Discrimination (NJLAD)?

Appellate Division Finds Additional Discovery Necessary Before Answering “Novel Question of Law”

A state appeals court recently took the first steps towards potentially answering that question. The court reversed a motion judge's decision to restrict discovery in a sex discrimination case involving a New Jersey company and a former employee who telecommuted from her home in Massachusetts. While the motion judge largely restricted the discussion to whether or not the plaintiff was an “inhabitant” of New Jersey–which she clearly was not–the Appellate Division noted the NJLAD actually applies more broadly to “persons” affected by discriminatory conduct that occurs in the state.

In that case, the named defendants are a New Jersey-based company and its president. The company's main office is located in Haddonfield in Camden County. The plaintiff worked for the defendants for about 12 years. The company provided her with a computer that she used to work from her residence in Massachusetts. She used this computer to connect to the company's server and conduct daily conference calls with co-workers, many of whom were located in New Jersey. And while she did visit the Haddonfield office on occasion, she had not done so since 2009.

After the plaintiff's employment was terminated, she filed suit in Superior Court under the NJLAD, alleging the defendants illegally discriminated against her on the basis of sex. The preamble to the NJLAD states the legislature's intentions behind the law, namely that “practices of discrimination against any of its inhabitants,” including sex discrimination, “are matters of concern to the government of the State.”

The defendants contended that the NJLAD did not apply to the plaintiff because of her residency outside of New Jersey. The motion judge agreed this was the proper legal standard and granted summary judgment to the defendants, concluding that “even under the most liberal constructions” of the NJLAD, the plaintiff was not an inhabitant entitled to the protections of the NJLAD.

But as the Appellate Division explained, the word “inhabitant” is only used in the preamble to the NJLAD. The rest of the statute uses the word “person” when referring to victims of employment discrimination. The Appellate Division further indicated the NJLAD is a “remedial statute” that must be “broadly construed.” Here, the plaintiff presented a “novel question of law” with respect to whether telecommuting was covered by the law. At a minimum, the appeals court said further discovery was necessary to determine whether any discriminatory acts occurred in New Jersey.

N.J. Employers Should Review Their Telecommuting Policies Now

It is important to understand the Appellate Division issued an unpublished opinion regarding pretrial motions in a still-developing case.  However, it seems the door may have been opened for  the discrimination claims of non-resident employees.

For now, New Jersey employers should take steps to review their own employment practices regarding remote workers, including those who perform their services outside the state. If you need assistance from a qualified New Jersey labor and employment law attorney, contact me at ngrzeskowiak@hoaglandlongo.com or call (732) 545-4717 today.