Last month a bill was introduced to the New Jersey State Assembly (A-5287) by Assemblymen John McKeon (Essex and Morris) and Jon Bramnick (Morris, Somerset, and Union) that would bar provisions in employment contracts that waive any substantive or procedural rights or remedies. The bill also seeks to prohibit agreements that conceal any details relating to discrimination claims.
The impact of this bill, if enacted as drafted, would seemingly preclude arbitration of employment-related claims of discrimination, retaliation, or harassment across all statutory frameworks including the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et seq., and the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et seq. The bill not only eliminates arbitration of employment disputes, but would also facilitate a public record for claims of discrimination, retaliation, or harassment.
In addition to the procedural limitations, the bill also impacts the ability of employers to negotiate and include, as part of a settlement agreement, confidentiality provisions that prohibit the disclosure of the settlement terms reached between the parties. This bill appears to be a response to the #MeToo Movement that has swept the country, and although change is necessary, the bill could have a considerable effect on an employer’s ability to limit the disclosure of the details relating to a claim of discrimination, retaliation, or harassment pursuant to the NJLAD or CEPA. Thus, details relating to such claims could become public record.