In April 2022, the percentage of workers who worked remotely was at its lowest in two years but, even with these declines, fully 1 in 13 workers (7.7%) remains a remote employee. With remote work comes the question of what to do if you, as a remote worker, experience discrimination or sexual harassment. Who should you sue? Where should you sue? For answers to these and other vital questions, look to an experienced New Jersey workplace discrimination lawyer for the answers you need.
A recent disability discrimination case addressing this issue involved a New Jersey woman who took a job with a New York City investment bank in 2020. Because of the COVID-19 pandemic, she began her job working remotely from her home. Shocked by the extremely long hours she was working, the employee notified Human Resources that she had an anxiety and mood disorder that required regular sleep. Human Resources and a senior partner worked out an accommodation, and the employee was made exempt from working more than 15 hours on any one day.
Just a few weeks later, the employer fired the woman, allegedly asserting that, among the job’s essential requirements, was “working many 120-hour weeks,” and that her disability rendered her incapable of satisfying the essential duties of the job.
She sued for disability discrimination in violation of the New Jersey Law Against Discrimination, the New York State Human Rights Law, and the New York City Human Rights Law.
The trial court threw out the New York claims. In New York, the law follows something called the “impact test” for determining if an out-of-state worker can sue for discrimination. That test requires the court to consider where the impact of an employer’s discrimination was felt. In this worker’s case, because she never actually worked in New York, the employer’s alleged discrimination could not possibly satisfy the impact test to allow claims under New York law, the court decided.
The woman’s discrimination case under New Jersey law was not dismissed and remained active.
How New Jersey Courts Address LAD Claims from Out-of-State Workers
Here in this state, the law approaches issues of remote workers who allegedly endured discrimination or harassment on the job differently. A couple of fairly recent Appellate Division cases are insightful regarding this issue. Back in 2018, the Appellate Division revived the age discrimination lawsuit of a remote worker. That woman spent the entirety of her career with her Haddonfield-based employer working from her Massachusetts home but was still able to pursue her case here.
In ruling for the worker, the appellate court was very clear that the LAD should be construed very broadly and that a worker didn’t need to be an “inhabitant” of New Jersey to pursue a LAD case, making it possible for a worker who never lived or worked in New Jersey to have a viable LAD case, depending on the specific facts.
A year later, the Appellate Division again tackled the topic of remote workers and LAD claims and again ruled for the worker. In that circumstance, the worker was an Illinois resident who worked for the Illinois subsidiary of a Teaneck-based animal nutrition company.
The employee’s case was one of associational disability discrimination; namely, that the employer denied him a promotion that would have relocated him to New Jersey, and then later fired him because his wife had developed terminal breast cancer.
That court, in ruling for the Illinois man, explained that several steps go into determining whether or not a non-resident worker can pursue a LAD claim. First, the court must look at New Jersey public policy expressed by the state legislature. If public policy requires the application of New Jersey law, then that preempts any other analysis and permits the worker to proceed.
If there is no clear public policy addressing the issue, then the court must resolve a two-part question: Did the legislature “intend the NJLAD to be broad enough to extend to… nonresidents such as plaintiff” and, if it did so intend, did it establish a “directive that compels our courts to apply New Jersey law to such plaintiffs and their employers”?
In the Illinois man’s case, the LAD was deemed broad enough, and the legislative directive clear enough, to permit him to proceed under New Jersey law. That was very important as Illinois does not recognize claims for associational disability discrimination, while this state does.
Remote workers who encounter discrimination or harassment at work represent a very unique circumstance when comes to court jurisdiction and application of state laws, as modern technology allows many remote workers to live and work far from their employers. Whether or not you’re a remote worker, the skilled New Jersey disability discrimination attorneys at Phillips & Associates are here to help unravel the complex legal elements of your case and get you the justice you deserve. Contact us online or at (866) 475-4267 today to set up a free and confidential consultation.