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Ding Dong Forced Arbitration and Confidentiality are Dead (In Employment Cases)

On March 18, 2019, Governor Murphy signed a game-changing law that will benefit all New Jersey workers. That law, S121, makes two important changes to what rights employees can be forced to give up just to be able to work.

The first change is that, as of March 18, employers can no longer force employees to arbitrate their discrimination, harassment, and/or retaliation claims or give up any other rights related to those claims. The second significant change is that employers can no longer demand silence in exchange for the settlement of discrimination, harassment and/or retaliation claims.

In recent years, more and more employers have forced their workers to give up their right to jury trials. Instead, many employers demanded that employees bring any claims they may have in arbitration – a secret process where one person (instead a jury of the employees’ peers) decides the outcome.

Critics of arbitration have argued, with support from studies, that arbitration favors repeat customers (such as employers) by both handing wins to employers far more often than juries do and by awarding far less money to successful employees than juries do, even in those limited circumstances where employees win in arbitration.

On a more basic level, discovery (the process by which the parties to a lawsuit exchange information) is often significantly limited in arbitration. That is particularly harmful to plaintiffs in employment cases and makes it difficult for them to prove their cases because almost all of the evidence is in the possession of employers in those cases. It is easy to understand why employers favor arbitration over jury trials.

But S121 changes all that. It specifically prohibits employers from requiring employees to give up any substantive or procedural rights or remedies relating to claims of discrimination, retaliation or harassment. That means that employees cannot be forced to arbitrate claims of discrimination, retaliation or harassment. It also means that employees cannot be required to give up their right to a jury trial and be, instead, forced to have judges decide their claims. It also means that employees cannot be forced to agree to shortened statutes of limitations, which some employers have done in recent years, or to agree to limit the money that they can be awarded if successful.

In an apparent nod to the “Me Too” movement, the law also puts an end to the muzzling of workers, which silence permits workplace discrimination, harassment, and retaliation to fester and continue. It does that by making clear that employees cannot be forced to agree to confidentiality in exchange for settling their claims of discrimination, harassment, and/or retaliation.

The law goes a long way to ending unlawful workplace conduct by stopping employers’ ability to require silence in exchange for the settlement of discrimination, harassment, and/or retaliation claims and shining a light on the existence those claims, as well as the workplaces where such unlawful behavior is allowed to grow and continue like toxic mold.

Client Reviews
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"Professional and Knowledgeable Attorney. At what was supposed to be the highest point in my career suddenly became the most harassing and lowest point of my career and I was passed over for a promotion. Not because the other person was more qualified than I was, but because I followed the law and did the right thing and the people I worked for did not like that. After researching several attorneys, my wife and I found Claudia, and the decision to retain her was the best decision we ever made. After explaining our case to Claudia, we found that she was not only extremely professional but a very caring human being. Throughout the entire process of our case, Claudia was there with us every step of the way. She explained every single proceeding that we had to go through and guided us, not only as a professional attorney in and out of court, but personally as a caring and understanding person. Because of her extensive working knowledge of employment and labor laws, Claudia was able to successfully resolve our case. My wife and I will always be extremely grateful for Claudia’s hard work and dedication, and we highly recommend Claudia Reis to anyone seeking an attorney who practices in employment and labor laws." John
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"Professionalism, integrity, and determination. Outstanding representation! Chris Lenzo did an outstanding job in my employment discrimination case. He responded to my questions in a timely fashion, provided clear communication through each step of the process, and handled my case in an honest and straight forward manner. Chris’s expertise in employment law along with his hard work ensured justice would prevail in my case and got me the compensation I deserved. Likewise, Chris’s law firm staff was professional, courteous, organized, and effective. I highly recommend Chirs Lenzo’s firm to anyone with an employment legal matter in New Jersey or New York." Sofia
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"Remarkable professional. I have worked with Ms. Reis and her firm for the past three years. During the consultation process, you will immediately experience her compassion as she offers suggestions and guides you through the difficult situation you are dealing with. Her attention to detail, timely follow up and candid manner ensured me that I was well-protected and represented. Ms. Reis always went above and beyond to protect me legally. She is a very strong and tough (when necessary) advocate for the individual she represents. Her support staff is equally diligent. I would recommend her without reservation." A.M.