To Enforce or Not Enforce: Mandatory Arbitration Clauses and Discrimination Claims

In 2019, the New Jersey Legislature amended the Law Against Discrimination (“LAD”), already one of the strongest anti-discrimination laws in the country, to prohibit mandatory waivers of employees’ right to a jury trial on claims of harassment and discrimination.  This amendment was consistent with the New Jersey Supreme Court’s frequent reminder that the purpose of LAD is nothing less than the eradication of discrimination in New Jersey’s workplaces.

Over the last two years, a hotly contested issue is whether the 2019 LAD amendment is preempted by the Federal Arbitration Act, which enforces agreements to arbitrate – including ones between employers and employees.  Employee advocates want the right to go straight to court and invalidate mandatory arbitration clauses, whereas employers have sought to skirt the LAD amendment by asking courts compel LAD plaintiffs to arbitrate claims.  Recent legal developments have brought this tension to the forefront.

NJ LERA is thrilled to bring you Retired New Jersey Supreme Court Justice Jaynee LaVecchia, who will headline an all-star panel to discuss this hot topic.  Justice LaVecchia, management attorney Ryan Carlson, Esq. (partner at Nukk Freeman & Cerra) and employee advocate Kelly Adler, Esq. (partner at McOmber, McOmber & Luber) will discuss, among other things, how the two most recent legal developments impact the issue of the mandatory arbitration of employment claims:

1. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” was just signed into law by President Biden.  The bill's expressed purpose is to remove sexual assault and sexual harassment from the FAA; and
2. The reported appellate decision in Antonucci v. Curvature Newco, Inc., et al., Dkt. A-1983-20 (App. Div. Feb. 15, 2022) (holding that the FAA preempted LAD and required an employee to arbitrate LAD claims in an employment handbook).

The panelists will discuss the pros and cons of arbitration of employment claims, the likely effect of the H.R. 4445 on LAD case law, why sexual assault/harassment should or should not be treated differently from other types of employment claims, the likelihood of Supreme Court affirmance of Antonucci, the inclusion of arbitration clauses in employment agreements and labor contracts, and many other important issues.