Earlier this month, President Biden signed legislation which had Congressional bi-partisan support into law, which bill ends the forced arbitration of employee sexual harassment and assault cases. This new law takes effect retroactively and is called the, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” This is good news for employees. The survivors of sexual harassment and assault may now once again file lawsuits in court against their perpetrators, and they are no longer prohibited from going to court on these matters as they were when these claims were precluded by the Federal Arbitration Act.
Forced arbitration shields workplace sexual predators instead of holding them accountable for their heinous acts. Forced arbitration agreements gives employers a legally enforceable instrument to hide misconduct.
This New Law Signed on March 3, 2022 Carves out an Exception to the Federal Arbitration Act Which Mandates That Employee Employment Arbitration Agreements Are Enforceable.
Previous to President Biden’s signing of this new law, The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the Federal Arbitration Act mandated that employee disputes must have their disputes resolved through binding arbitration if they signed an arbitration agreement. Arbitration in many instances favors the employer and the arbitrator’s decision is not appealable to an Appellate Court as is a lawsuit filed in Superior Court
Many employees unknowingly sign Arbitration Agreements in the workplace. In these agreements, the employees are giving up their rights to file a lawsuit in court against their employer for race, age, gender, etc., discrimination, and other claims of discrimination, retaliation, and harassment under the New Jersey Law Against Discrimination. Far too often, innocent employees do not realize the ramifications of what they are signing. Often these employer-drafted Arbitration Agreements are buried deep in other documents that employees sign, and this shrouded placement within other documents is not by accident but by devious design. Most employers want to avoid going to litigation on employment disputes with their employees.
Unfortunately, the Federal Arbitration Act upholds these agreements, even when there is a stronger-employees’-rights state statute that mandates employee arbitration agreements are not enforceable unless the employee chooses to go to arbitration. Such was the case in New Jersey when the state had a 2019 law that set forth several substantive and procedural protections for employees who bring employment claims.
The New Jersey law, NJSA § 10:5-12.7, in part had prohibited employers from enforcing pre-dispute mandatory arbitration provisions for all employee claims of age, race, sex, etc., discrimination, retaliation, and harassment under the New Jersey Law Against Discrimination. It mandated that any provision in an agreement which waived any substantive or procedural right or remedy relating to such claims of such discrimination, retaliation, or harassment in an employment contract, as being against New Jersey’s public policy and was not legally enforceable. It mandated that no right or remedy under the New Jersey Law Against Discrimination shall be prospectively waived.
Two years later, in March of 2021, the U.S. District Court for The District of New Jersey held that New Jersey’s ban on pre-dispute arbitration of employment claims was preempted by the Federal Arbitration Act. The New Jersey Superior Court in an earlier January 2021 case had reached a similar conclusion. When a Federal Law preempts a state law, it means that the Federal law is controlling when there is a conflict between the Federal law and the state law.
The “Me-too” movement brought into the public spotlight the extent of sexual harassment and assault in the workplace and that secrecy of settlements and covering it up with forced non-disclosure agreements only contributed to the continuance of a workplace sexual harassment culture. This new “carve-out” in the Federal Arbitration Act now does not require employees to submit to the forced arbitration of workplace sexual harassment and assault claims. Such NJ employees may once again now file their workplace sexual harassment and assault claims in court, thanks to signing of “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in representing employees who suffered sex, sexual orientation, and gender discrimination, and sexual harassment in the workplace was successful in recovering money for them. If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.
Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.