Squire Patton Boggs’ Summer Associate Luis Ayala Gutierrez discusses recent guidance relating to the application of New Jersey’s employment discrimination law to remote workers.
Although the pandemic is (mercifully) mostly behind us, many employers who implemented remote work arrangements as a pandemic measure have retained hybrid in-office/remote or fully remote workforce arrangements, providing employees with welcomed flexibility and providing employers with a wider labor pool from which to draw. But the dramatic increase in remote working arrangements has introduced uncertainty about what laws apply to employees who are not physically present in the workplace.
The New Jersey Office of the Attorney General (“AG”) and the New Jersey Division of Civil Rights (“DCR”) recently issued guidance with respect to the interpretation of New Jersey’s Law Against Discrimination (“NJLAD”) as it specifically relates to remote workers. Like federal anti-discrimination law, the NJLAD prohibits New Jersey employers from discriminating against employees or applicants based on, among other characteristics, sexual orientation, gender, gender identity, gender expression, age, race, color, national origin, ancestry, religion, and disability. N.J.S.A.10:5-12(a). The AG and DCR’s May 2024 guidance explains that even entirely remote employees – those who perform work for New Jersey employers but who are not physically present in New Jersey – are protected under the NJLAD. In other words, an employee need not be a resident of New Jersey or even physically work in New Jersey in order to be protected by the NJLAD because the law applies to all employees of a New Jersey employer, regardless of their physical location. The AG and DCR point to the NJLAD’s expansive language—specifically, the law’s application to “all persons,” “any person or group of persons,” and “any individual”—as evidence that the NJLAD is not limited to employees residing or principally working in New Jersey. Likewise, the guidance concludes, the NJLAD also may extend to remote workers living in New Jersey but working for an employer in a different state, provided the employees can establish a connection between their employer and its business to the state of New Jersey.
Based on this guidance, employers that do business in New Jersey or that employ remote employees based in New Jersey should ensure their employment practices comply with applicable state law, including the NJLAD.