If you “telecommute”, you’re not alone. According to a recent Gallup poll, an estimated 37% of the American workforce telecommutes for work, at least part of the time. If your work is based more on what your do with your brain and less with your hands, and both you and your employer are flexible about it, you may live anywhere while working for a New Jersey employer.

If you live outside of our state, are employed by a New Jersey company, and feel you’ve been discriminated against, may you file a lawsuit against your employer based on the NJ Law Against Discrimination (NJLAD)) in our state trial courts? The answer could be yes, depending on the facts of your case.

When may out-of-staters use New Jersey courts?

This issue came up in the recently decided case of Trevejo v. Legal Cost Control, where an employee, Susan Trevejo, claimed her employer of 12 years, Legal Cost Control, Inc. (LCC), of Haddonfield, NJ, wrongfully terminated her employment. Trevejo lives in Massachusetts, where she worked for the company, with the help of an LCC supplied computer and telephone.

The employer asked the trial court to dismiss the case because Trevejo wasn’t an “inhabitant” of the state, and asked that discovery in the case (the process by which information, documents, and testimony are exchanged) should be disallowed. LCC claimed Trevejo wasn’t protected by the NJLAD because part of the statute (N.J.S.A. 10:5-3) states the law’s goal is to protect NJ “inhabitants.”

The Legislature finds and declares that practices of discrimination against any of its inhabitants… are matters of concern to the government of the State…

The trial court dismissed the plaintiff’s claims, because she lived in Massachusetts, only visited her employer a couple times during her employment, and wasn’t an NJ inhabitant. The plaintiff appealed the trial court’s dismissal.  The New Jersey Appellate Division reversed the lower court decision.

The language of the state law is broad and may apply to those living outside New Jersey, on the right facts.

The Appellate panel stated discovery needed to continue to see if there are germane facts that show Trevejo has a basis to claim protection under the NJLAD. It stated the lower judge looked at the law too narrowly and that plaintiff should have an opportunity to develop her proof of contacts with the employer and the State.

The NJLAD’s language isn’t consistent. It doesn’t state repeatedly that discrimination against inhabitants is illegal. It actually uses that term “inhabitants” in the preamble only, describing the goals of the law. The Appellate Panel pointed out the term isn’t defined in the NJLAD, nor has it been defined by prior lawsuits.

The Appellate Court stated that:

• The language of the preamble needs to be read along with the rest of the statute to get its full meaning.
• The NJLAD prohibits unlawful employment practices and unlawful discrimination against “any individual”.
• The law states it’s meant to protect “all persons” against discrimination.
• The sections making it illegal to retaliate and discriminate in public accommodations, real estate transactions, and banking appear to cover “any person”, in or out of state.

The Appellate Court also stated:

We conclude that discovery is required to determine where the discriminatory conduct took place – in New Jersey or Massachusetts  – and to explore whether plaintiff was employed in New Jersey or Massachusetts. To limit discovery on whether plaintiff is an “inhabitant” of New Jersey cannot be harmonized with the overarching goal of the NJLAD, affording protection to “persons” who experience discrimination in this State.

How do you know — and how do you show — you have the right to file a lawsuit in a New Jersey trial court?

The Travejo decision states that there weren’t enough facts to establish whether a NJ state court has jurisdiction (the ability to rule on the case) and that the following issues should be explored as discovery continued,

• Where plaintiff’s co-employees worked;
• Whether they worked from home;
• The nature of the software used by plaintiff and other LCC employees to conduct business on for LCC;
• The location of the computer server used to connect plaintiff and other employees to LCC’s office;
• The location of the internet service provider used by plaintiff and other employees to connect to LCC’s office;
• The identity of the individual or individuals who made the decision to terminate plaintiff’s employment and the basis for the decision; and
• Any other issues relevant to plaintiff’s contacts with New Jersey and her work for LLC that may show her entitlement to protection under the NJLAD.

Decision gives no clear guidance.

The decision shows that,

• Living out of state isn’t necessarily a bar to a discrimination lawsuit in our state courts, but,
• It also states that just working for a company located in New Jersey may not be enough to justify NJ jurisdiction.

The more contacts with New Jersey, the more likely a New Jersey court will find it has jurisdiction under the Trevejo case. What those contacts may or may not be in that case are unknown. There’s a good chance that unless the case settles, the defendant will seek to have the case dismissed on the same grounds and another, future court decision may make it more certain what an out-of-state telecommuter needs to show to proceed with a viable discrimination case in New Jersey courts.

If you find yourself in Ms. Trevejo’s situation, you should promptly speak with an experienced NJ employment lawyer to explore your legal rights. If you live outside of New Jersey, but work for an employer within it, then laws where you live may be more helpful and it may make more sense for you to file a case there. On the other hand, if New Jersey’s jurisdiction is more favorable to you, then you need the help of legal counsel in this state to determine if it makes sense to proceed here.  You won’t know for sure until you discuss the facts and law with a NJ based employment lawyer for workers.  Call us to determine and prosecute your rights, if New Jersey is the right place for you to proceed.

If you’re an out of state telecommuter and feel your New Jersey employer has discriminated against you, contact us so we can discuss the facts of your case, the applicable law, and what you should do next. Call us today for a reduced fee initial consultation.  You will be glad you did.