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Appellate Division Rules on New Jersey Employment Discrimination Law in the Age of Telecommuting

 

In 1945, New Jersey’s Legislature enacted the Law Against Discrimination.  It has been repeatedly revised to increase its inclusion and scope.  However, its goal remains the same today as it was in 1945: “nothing less than the eradication of the cancer of discrimination in the workplace.”  The Law Against Discrimination declares that a workplace free from discrimination is a civil right in New Jersey.

The main section of New Jersey’s Law Against Discrimination dealing with employment bars employers from firing, refusing to hire, or discriminating against employees in their pay or other terms, conditions or privileges of their employment  because of their “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”

When the Legislature enacted the Law Against Discrimination, it listed its purpose as protecting “inhabitants” of New Jersey.  However, every other section of this long Law prohibits discrimination against “any individual” or “any person.”  In 1945, this discrepancy was not an issue.  However, in today’s cyber-world, a conflict inevitably arose between the term “inhabitants,” and “any individual” or “any person”  in the context of telecommuting.  The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion helping to clarify this issue.

Susan Trevejo lived in Massachusetts and telecommuted for her employer, Legal Cost Control, Inc. (“LCC”).  LCC was located in Haddonfield, New Jersey.  Like many of LCC’s other employees, Trevejo lived out of state and telecommuted.  She was rarely at LCC’s New Jersey offices.

LCC fired Trevejo, and she sued it for age discrimination in the Law Division of the Superior Court of New Jersey (where civil trials are normally held) under the Law Against Discrimination.  LCC’s attorneys filed a motion for summary judgment, asking the judge to throw out Trevejo’s case because she was not an “inhabitant,” and therefore not protected by the Law Against Discrimination.

The judge initially decided that it was not a clear cut case and ordered discovery (the exchange of evidence and the taking of pre-trial testimony) on the limited question of whether Trevejo’s status allowed her to prosecute a claim under the Law Against Discrimination.  LCC’s attorneys refused to allow their witnesses to answer many questions relevant to the status of Trevejo, the company, similarly situated employees, and how LCC used out of state employees telecommuting in its business model.  They renewed their motion, and the judge dismissed Trevejo’s case because she had not demonstrated “sufficient contacts with New Jersey to be considered an ‘inhabitant.’”  Despite the fact that the operative section prohibited employment discrimination against “any individual,” the judge found that she needed to show that she was an “inhabitant” of New Jersey.

Trevejo appealed.  The Appellate Division reversed the trial court’s dismissal and reinstated Trevejo’s case.

The general rule is that a trial court cannot grant summary judgment until discovery is complete.  The Appellate Division ruled that Trevejo was entitled to full discovery on the issue of whether telecommuting and electronic connection to the New Jersey workplace was sufficient to allow her to receive the protections of the Law Against Discrimination.

The Appellate Division also found the reliance on the preamble’s mention of “inhabitant” was  misplaced, given that every other section of the Law Against Discrimination uses “any individual” or “any person.”  Rather than whether Trevejo was an “inhabitant” of New Jersey, the key question was whether Trevejo “worked” in New Jersey by virtue of her telecommuting and electronic connection to the New Jersey office.  Factors which impact this in the case of telecommuters like Trevejo include:

  • Where her coworkers worked
  • Whether coworkers worked from their homes
  • The nature of the software used by the employer
  • The location of the server used to connect the employees to the employer
  • The location of the internet service provider allowing the employees to connect to the employer
  • The location of the person[s] who made the decision to terminate the employee
  • The basis for the decision to terminate the employee
  • Any other relevant information

This was undoubtedly the correct decision.  To hold otherwise would be to allow New Jersey employers to escape liability for discrimination simply by requiring their employees to telecommute from out of state.

The decision was unpublished, which means that it is binding only in this case.  However, it will provide strong guidance for other New Jersey courts in deciding similar questions which are sure to arise in our wired world.

McLaughlin & Nardi’s employment law attorneys represent employees and employers in cases of employment discrimination.  Call us at (973) 890-0004 to schedule a consultation with one of our employment attorneys.