It has become commonplace across the U.S. that job applicants and current employees are asked to waive legal rights and remedies to be hired or keep a job. This can silence complaints about workplace discrimination and foster discrimination, harassment, and retaliation.

A bill making its way through the New Jersey Legislature would prohibit employers from forcing an employee to waive his or her rights involving sexual harassment, discrimination, and retaliation claims. The Senate bill is sponsored by Sen. Loretta Weinberg.

If enacted into law, an employment contract that includes the employee being compelled to give up legal rights and remedies in advance would be deemed against public policy and unenforceable by the courts. The rights and remedies at issue include those in the state’s nationally recognized Law Against Discrimination and “any other statute or case law” (interpretive court decisions). The bill wouldn’t apply to the terms of collective bargaining agreements.

The bill states that a part of any employment contract or agreement that is meant to, or has the practical effect of, forcing an employee to hide the details of discrimination, retaliation, or harassment claims, including those submitted to arbitration, shall be deemed against public policy and unenforceable.

To put some teeth into the proposal, if an employer enforces or tries to enforce an employment contract found to be in violation of the bill’s protections, it would have to pay the employee’s reasonable attorney fees and costs of the legal fight. If an employee claims he or she is harmed by an employment contract that violates the bill, the person can sue the employer in Superior Court.  All remedies available in tort actions (such as damages for pain and suffering) would be available if the lawsuit succeeds, in addition to an award of reasonable attorney fees and costs.

Fee shifting provisions are very important in the law, as they level the playing field between a massive employer and an individual employee.

The bill states an employer shall not retaliate against someone refusing contract terms that preempt civil rights claims in the workplace or mandate secrecy as part of settlement terms. This includes failing to hire, firing, suspending, demoting, or discriminating against the person in the terms, conditions, or privileges of employment.

A major motivator for the bill is the recent #MeToo movement, which is a response to widespread claims of workplace sexual harassment and assault in the arts and elsewhere. Often victims can’t go public with allegations because they’re bound by employment contracts or settlement documents prohibiting disclosure. These contracts are seen as enabling harassers because they can quietly resolve these cases over and over again without anyone on the outside knowing about them.  The malefactors can throw money at the problems, and leave the problems in place to trip up and injure yet more innocent workers. This also makes it easier for the harasser to keep their job, be promoted, or get hired by another company.

The bill, if signed into law, would take effect immediately and apply to all contracts and agreements entered into, renewed, modified, or amended on or after the effective date. It passed the state Senate in June and an identical bill is pending before the Assembly Labor Committee.

If you’ve been given an employment contract you want reviewed or believe you’ve been discriminated against or sexually harassed or retaliated against in the workplace — and you have questions or want to know what your options are, please contact our office. We will listen to your facts, explain the law, and help you vindicate your legal rights and interests.  Call us today.  You will be glad you did.