In a recent published decision, Jaworski v. Ernst & Young, Docket No. A-5259-13T2 (App. Div. 2015), New Jersey’s Appellate Division considered whether employees who continued to work for their employer after being notified of the employer’s policy requiring employees to submit all disputes to arbitration, rather than proceeding through the court system, were governed by the policy. The Appellate Division determined that the employees had consented to the policy and accordingly ruled the employer’s policy enforceable.
In the case, the employer, Ernst & Young, repeatedly notified employees of the policy and informed them that merely by continuing to work, the employees were agreeing to the policy and thereby waiving their right to bring suit against Ernst & Young in the event of dispute. By deeming the policy enforceable, the Appellate Division’s ruling barred the employees from continuing to pursue their claims of age discrimination against Ernst & Young in court and from having their cases heard by a jury.
For individuals in New Jersey with potential employment based claims against their employers, whether contractual or based upon statute, the decision serves as a reminder that employees must pay attention to the content of any notice from their employer. Whether through an employee handbook, policy or agreement issued by employers, the Jaworski decision suggests that an employee may be found to have waived his or her right to suit without taking any affirmative action to do so, other than continuing to work. Without signing or expressly agreeing to a policy in writing, under this ruling an employee could be found to have waived his or her right to sue an employer for things like age, sex, race or gender identity discrimination. If an actionable claim later arose, an employee subject to such a policy would be limited to the recourse allowed for by the employer’s policy.
While the Jaworski case may serve as a cautionary tale, employees in New Jersey may have limited options in terms of learning from it. As plaintiff’s counsel in the Jaworski case argued, if employers may impose agreements to arbitrate disputes and waive the right to sue upon their employees as a condition of employment, the employees are faced with a choice of either accepting the arbitration agreement and keeping their jobs or rejecting the agreement and forfeiting their positions. Faced with such a choice, many employees would understandably feel as though they have no choice at all.
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