On May 14, 2024, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division on Civil Rights (“DCR”) released Guidance on Discrimination and Out-of-State Remote Workers (“the Guidance”), explaining the New Jersey Law Against Discrimination’s (NJLAD) application to remote employees. Noting the rise of telework following the COVID-19 pandemic, the Guidance states that the NJLAD is not limited to protecting only New Jersey-based employees but takes the position that it protects aggrieved employees of New Jersey employers “regardless of their residency or where they physically work, including those who work remotely full-time or part-time on a hybrid schedule.”
While the Guidance does not define “New Jersey-based employers,” it cautions in a footnote that there may be cases, as a result of choice of law analyses, when a court may not apply New Jersey law to a multi-state dispute. The Guidance suggests the inquiry is fact-sensitive, also cautioning in a footnote that NJLAD may not extend to employees who work remotely in New Jersey for an employer in another state. Instead, employees must “establish a nexus between their employer and New Jersey for the LAD to apply.”
The Guidance justifies NJLAD’s broad applicability by pointing to several definitions within the statute, and their respective lack of geographic restrictions on their scope. In stating NJLAD provides “all persons shall have the opportunity to obtain employment . . . without discrimination,” the Guidance juxtaposes the broad definition of persons as “one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries” with the lack of a geographic restriction on its scope. In further support, the Guidance cities to recent caselaw holding that under certain circumstances the NJLAD may extend to employees who reside or work outside of New Jersey.
As employers continue to grapple with the complexities raised by the growing work-anywhere culture, the Guidance serves as a reminder to employers that keeping track of where remote employees work, to whom they report and how they are managed – not merely their on-record place of residence - may govern what employment laws apply to their employment.
Jessica Hajdukiewicz, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.
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