New Jersey Employment Lawyer Blog
When a worker has devoted decades of service to an employer, they likely hope for recognition and appreciation… and perhaps a nice sendoff party at the end. Many workers experience something much different, where their employers and supervisors view them as past-their-prime old-timers who no longer have “what it takes” and now must be pushed aside, often as ruthlessly and swiftly as possible. If that happens to you as an older worker, that action your employer may simply see as a “business decision” could actually be an instance of illegal age discrimination. A skilled New Jersey age discrimination lawyer can help you assess your circumstances and plot the best path forward.
One such alleged victim of age discrimination recently scored a significant victory in the New Jersey Appellate Division court.
The worker, L.T., was an assistant public defender for nearly 28 years from 1990 to 2017. For the first 22 years, L.T.’s record was “unblemished.” However, in the final 5+ years, the lawyer allegedly experienced an extended pattern of age-related harassment.
During that period, the state’s Public Defender allegedly “bragged about hiring many young attorneys to replace [the older attorneys], and mocked older attorneys for their views about zealous advocacy.”
Believing that his bosses were building toward wrongfully terminating him (based on the frequent and escalating actions of belittling, berating, and bullying taken toward him,) L.T. agreed to retire, according to the complaint. The agreement was part of a larger deal in which L.T. agreed to withdraw an age discrimination grievance and the employer agreed to let him stay on until September 2017, when he reached the age of 62.
That contract contained a waiver provision that said that L.T. waived “all claims… including but not limited to all claims under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family Leave Act, the Family and Medical Leave Act, the [NJLAD], NJ Family Leave Act, the Equal Pay Act, the Conscientious Employee Protection Act, [and] the Age Discrimination in Employment Act.”
Allegedly, L.T. signed the agreement only because he feared the employer would immediately terminate him if he refused, and also because he was “under the stress and mental anguish caused by defendants’ repeated harassment, discrimination, and retaliation.”
Two years later, the attorney sued. The trial judge threw out the discrimination complaint, granting the employer’s motion to dismiss and ruling that the waiver provision in the previous agreement barred him from pursuing his case.
The Appellate Division court, however, determined that the issue of waiver was not something that the trial court should have decided via a motion to dismiss.
Waiver Clauses and the ‘Totality of the Circumstances’
The court pointed out that, starting in 2019, a new standard replaced the old one for deciding the enforceability of a contractual waiver like this one. The new standard, called the “totality of the circumstances” test, says that trial courts should look at:
- 1) the plaintiff’s education and business experience
- 2) the amount of time the plaintiff had possession of or access to the agreement before signing it
- 3) the role of the plaintiff in deciding the terms of the agreement
- 4) the clarity of the agreement
- 5) whether the plaintiff was represented by or consulted with an attorney
- 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law
The issues in L.T.’s argument against the waiver largely focused upon questions of whether or not his agreement was truly voluntary or was made under “economic duress.” (Economic duress is something that exists when ” the party alleging it is ‘the victim of a wrongful or unlawful act or threat’ [that] ‘deprives the victim of his unfettered will.”)
In support of his claim of economic duress, the lawyer laid out detailed descriptions of “repeated acts of ‘sadistic’ retaliation.” Given the importance of questions about L.T.’s willfulness and/or intent when he signed the contract and the detailed nature of his economic duress assertions, the court determined the attorney’s case was something that should proceed.
More seasoned workers should receive respect for their years of service and the knowledge that comes with such extensive experience. Instead, too many get pushed aside for discriminatory reasons related to their age. If that happens to you, do not wait in seeking out skillful legal counsel. The knowledgeable New Jersey age discrimination attorneys at Phillips & Associates are equipped to help. We’ve successfully represented countless older workers and we’re eager to get to work for you. Contact us online or at (866) 530-4330 today to set up a free and confidential consultation.