Appellate Division Holds that the New Jersey Law Against Discrimination May Apply to Telecommuters Who Reside Out of State

June 13, 2018

The New Jersey Law Against Discrimination (LAD) protects workers from discrimination based on race, creed, color, national origin, age, ancestry, nationality, sex, gender identity, disability, sexual orientation, or genetic information. The Appellate Division recently clarified the scope of the LAD in Trevejo v. Legal Cost Control, Inc., Dkt. No. A-1377-16T4 2018, N.J. Super. Unpub. LEXIS 727 (App. Div. Feb. 27, 2018), wherein it held that the law may protect individuals who work for New Jersey-based employers on a telecommuting basis, even when the employee resides out of state.

 

In Trevejo, the plaintiff sued for age discrimination after her employer, a New Jersey-based company, terminated her employment after 12 years.  The plaintiff, who had worked for the employer on a telecommuting basis, never lived in New Jersey; never sought or received benefits from New Jersey, possessed a Massachusetts driver’s license, and lived and paid taxes in Massachusetts.  She visited the employer’s New Jersey office “a few times” between 2003 and 2008, but between 2009 and her termination in 2015, the plaintiff did not travel to New Jersey at all. She received health insurance through an employer-based plan.

 

On these facts, the trial court granted summary judgment in favor of the employer, finding that the plaintiff failed to establish sufficient contacts with New Jersey to be considered an “inhabitant” for purposes of the LAD.

 

The Appellate Division reversed, holding that the terms of the LAD apply to “any person” who experiences discrimination in New Jersey. Because the LAD does not restrict “any person” to mean “inhabitant” of New Jersey, the interpretation by the lower court was overly restrictive. On that basis, the Appellate Division remanded to permit further discovery on the issue of whether plaintiff’s “virtual” contacts entitled her to protection under the LAD, i.e., whether the alleged discrimination took place in New Jersey or Massachusetts. Specifically, the Appellate Division directed that discovery should encompass:

 

  •         The work location of the plaintiff’s co-workers;

  •         Whether the co-workers also worked from home;

  •         The identity of the individuals who terminated the plaintiff and their reasons for doing so;

  •     The location of the server that connected the employer’s New Jersey office to the plaintiff;

  •     The location of the internet service provider used by Plaintiff to connect to the employer’s New Jersey office; and

  •        The nature of software used by the plaintiff and other employees to do business on behalf of their employer.

 

This case affirms LAD’s broad scope, and the Appellate Division confirmed that “[t]he predominant goal of the NJLAD is nothing less than the eradication of the cancer of discrimination in the workplace.” (internal quotation marks omitted). Under Trevejo, employees of New Jersey-based companies who work out of state on a telecommuting basis may be entitled to protection under the LAD, so long as there is sufficient evidence that the discrimination at issue took place in New Jersey.

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