In a new decision on November 13, the New Jersey Appeals Division took the necessary conditions to show mutual consent to take it one step further. In Flanzman, the employer attempted to compel a former employee to settle her rights to age discrimination and harassment under the ADA. The NJ Supreme Court rejected this reasoning and set aside the appeal division. First, the Court decided on the guidelines for arbitration agreements codified in the FAA and the NJAA. Second, the FAA and the NJAA provide « standard » provisions that empower a court, at the request of a party, to rule on an issue left pending by the parties with respect to the selection and appointment of their arbitrator. As a result, the arbitration agreement at issue was applicable, although the parties did not choose an arbitrator or arbitration forum. This approach may be particularly desirable for New Jersey employers, given the NJLAD`s 2019 amendments, which include retaliatory measures against employees who refuse to take legal action for discrimination, retaliation and/or harassment. While the anti-arbitration provisions of the amendment are probably not applicable, as anticipated by the FAA (at least in cases where the FAA applies), this has not yet been done. Skuse gives employers the opportunity to continue to require workers to regulate employment rights (including rights that claim discrimination, retaliation and/or harassment) as a condition of their employment, without having to face potentially valid requests for reprisals from workers dismissed for refusing consent. Skuse allows employers to subject workers to leave before an agreement comes into force if they do not want to be related to it. As a result of this decision, employers working in New Jersey should consider reviewing their arbitration agreements to ensure that they contain the necessary provisions.
A federal district court allowed the discovery, as by Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764 (3d Cir. 2013) to determine whether the parties understood the order of language Order of Arbitration for Reprehensible Claims also include the reconciliation of legal claims. Abedi v. New Age Med. Clinic, P.A., 2019 U.S. Dist. LEXIS 67903 (D.N.J. 2019). The lesson here is clear (and complete) in identifying the types of disputes submitted to arbitration. In analysing the case before it, the New Jersey Supreme Court concluded that it must first ascertain whether the terms of the agreement, as well as Pfizer`s explanatory documents, complied with New Jersey jurisprudence, which requires clear and unequivocal deductibility of rights.
The Supreme Court also noted that a provision on the waiver of voting in the context of employment must inform workers (although not with a « prescribed sentence of words ») that they have agreed to settle all legal rights arising from the employment relationship or termination. » In particular, Flanzman`s compromise clause meets the requirement set out in the New Jersey Supreme Court decision at Atalese v. U.S. Legal Services Group, 219 N.J. 430, 445 (2014), that a valid arbitration agreement must contain « clear and unequivocal language » that disputes be resolved through arbitration proceedings and not before the courts. That is, Flanzman`s compromise clause is clearly and unambiguously conditional on disputes being resolved by a final and binding conciliation « in place of a jury or other civil trial. » Atalese and Flanzman seem to be departing from « avowed public policy that favours the use of arbitration as an alternative forum. » Fawzy v. Fawzy, 199 N.J. 456, 468 (2009). Atalese Court attempted to address these public policy concerns by noting that arbitration agreements must not contain « magic words » to maintain.