Search form

New Jersey Prohibits Enforcement of Non-Disclosure Provisions in Settlement Agreements, Other Contracts

By Martin W. Aron, Brett M. Anders, John K. Bennett and Katherine M. DiCicco
  • March 20, 2019

A sweeping amendment to the New Jersey Law Against Discrimination (LAD) bars enforcement of non-disclosure provisions in settlement agreements and employment contracts, and prohibits the waiver of substantive and procedural rights under the statute. The amendment applies to all contracts and agreements entered into, renewed, modified, or amended on or after the effective date, March 18, 2019.

Highlights

The amendment has the practical effect of prohibiting typical confidentiality provisions that accompany settlements of LAD claims. The amendment provides that non-disclosure provisions in employment contracts and settlement agreements are against public policy, and deemed to be unenforceable against a current or former employee if they have “the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.”

Under the amendment, every settlement agreement resolving a LAD discrimination, retaliation, or harassment claim by an employee against an employer must include a bold and prominently placed notice stating that “although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.”

In addition to the practical impact of the amended LAD regarding confidentiality of settlement terms, employers should determine whether existing contracts and agreements contain waivers of procedural and substantive rights guaranteed by LAD. The amendment provides that “[a] provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.” The amendment further provides that “[n]o right or remedy under the [LAD] or any other statute or case law shall be prospectively waived.”

This language likely will lead to litigation over the effectiveness of jury-waiver provisions and agreements to arbitrate LAD claims against an employer on or after the effective date of the amendment. While what impact the amendment will have on arbitration is unclear, legal challenge is expected as the amendment appears to conflict with the Federal Arbitration Act, which preempts state law that prohibits the use of arbitration agreements. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011) (“When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”).

In addition, if an employer seeks to enforce a provision prohibited by the new law, aggrieved employees may file suit in New Jersey state court to recover common law tort remedies, in addition to reasonable attorneys’ fees and costs associated with the filing.

***

Given the broad language in the amendment and its effect on all types of agreements relating to employment (even severance agreements after assertion of LAD claims), it is important that employers seek guidance regarding modifying settlement agreements when resolving LAD claims with current or former employees, and reviewing employment contracts and other agreements that may conflict with the new law.

The Legislature introduced the amendment at the height of the #MeToo movement, after news reports revealed that settlement agreements of high-profile cases involving well-known entertainment and media personalities accused of sexual harassment included non-disclosure provisions. The amendment’s supporters in the Legislature have praised the amendment for allowing purported victims of unlawful conduct to discuss their claims publicly. Critics note that the promise of confidentiality that incentivized many employers and employees to resolve discrimination, harassment, or retaliation claims through settlement has largely been eliminated by this amendment.

Jackson Lewis attorneys are available to answer questions regarding the LAD and to assist employers in achieving compliance with its requirements.

©2019 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

October 14, 2019

New York City Enacts Legislation Clarifying Independent Contractor Protection under Human Rights Law

October 14, 2019

While courts have generally interpreted the New York City Human Rights Law (NYCHRL) as providing anti-discrimination protections to individuals performing services as independent contractors, effective in January 2020, amendments to the NYCHRL clarify such protections. These amendments also clarify that while the NYCHRL’s coverage of... Read More

October 7, 2019

U.S. Supreme Court to Hear Arguments on LGBTQ+ Workplace Protections under Title VII

October 7, 2019

The U.S. Supreme Court is set to hear oral argument on October 8, 2019, in three high-stakes cases that will decide whether LGTBQ+ employees are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964. The cases before the Court are Altitude Express Inc. v. Zarda, No. 17-1623, Bostock v. Clayton County... Read More

October 7, 2019

Connecticut Releases Sexual Harassment Prevention Training Guidance

October 7, 2019

The Connecticut Commission on Human Rights and Opportunities (CHRO) has released sexual harassment prevention training in accordance with the Time’s Up Act. The Act requires employers of all sizes to provide sexual harassment training to supervisors by October 1, 2020 (or within six months of hire, after that date). Employers with at... Read More