On May 14, 2024 the New Jersey Office of the Attorney General and the Division on Civil Rights (DCR) published guidance on Discrimination and Out-of-State Remote Workers. This guidance, which is not legally binding, aims to clarify the DCR’s position on how the New Jersey Law Against Discrimination (LAD) applies to all workers who are employed by New Jersey-based companies, including remote workers.  

The LAD prohibits New Jersey employers from discriminating based on actual or perceived sexual orientation, gender, gender identity, gender expression, age, race, color, national origin, ancestry, religion, disability, and other protected characteristics. While the general protections and prohibitions under the LAD have long existed, the COVID-19 pandemic and related rise in hybrid and remote working arrangements raised questions as to how the LAD applies to remote workers.

 Most notably, the guidance highlights that the definitions of a covered “person” under the LAD and the LAD’s substantive protections include no geographic restrictions.  As such, under the guidance any employee working for a New Jersey employer can seek remedies for LAD violations, regardless of where the employee resides or where they physically work.  This differs from how other jurisdictions approach the scope of state anti-discrimination law protections.  For example, New York utilizes an “impact test” and looks to whether New York is the place where the impact of the alleged discriminatory conduct is felt for purposes of coverage under the New York State Human Rights Law.

The NJ guidance notes that this interpretation is supported by case law precedent from both state and federal courts interpreting the reach of the LAD.  It also reiterates that the LAD is intended to be liberally construed to achieve its purpose of eliminating discrimination.  That being said, the guidance recognizes that the protections under the LAD do not automatically extend to individuals who work for a company based in a state other than New Jersey.  For example, the LAD may not apply to employees who work remotely in New Jersey for an employer in another state, or to employees who commute from New Jersey to work for an employer in another state.  Rather, such employees would need to establish a nexus between their employer and New Jersey for the LAD to apply.

*Special thanks to summer associate Morgan R. Martin for their assistance in preparing this update.*

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Photo of Evandro Gigante Evandro Gigante

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the…

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the Employment Litigation group, and co-head of the Counseling, Training & Pay Equity group, he represents clients on a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. In addition, Evandro handles restrictive covenant matters, including non-compete, non-solicitation and trade secret disputes. Evandro also counsels employers through the most sensitive employment issues, including matters involving employer diversity, equity and inclusion initiatives.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases before juries and arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in professional services, including law firms, financial services, including private equity and hedge funds, higher education, sports, media, retail, and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.