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Are Telecommuters Protected by the New Jersey Law Against Discrimination?

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The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination in the workplace.  But does it protect employees who work for New Jersey companies remotely, such as telecommuters?  A recent ruling by New Jersey’s Appellate Division makes it clear that an employee does not have to physically live or work in New Jersey to be protected by the LAD.

Susan Trevejo worked for Legal Cost Control (“LCC”) for 12 years.  After LCC fired her, Ms. Trevejo sued for age discrimination in violation of the LAD.  LCC is a New Jersey company which has its headquarters in Haddonfield, New Jersey.  However, Ms. Trevejo is a resident of Massachusetts who has never lived in New Jersey or worked in LCC’s office in New Jersey aside from a few meetings she attended earlier in her tenure with the company. Rather, she worked remotely from her home.

Early into the case, LCC filed a motion for summary judgment, claiming that the LAD does not apply to Ms. Trevejo because she is not an “inhabitant” of New Jersey.  The trial court denied LCC’s motion, and instead permitted the parties to engage in some limited discovery (the process of exchanging information in a lawsuit) about Ms. Trevejo’s right to bring a claim under the LAD.

After that limited discovery, LCC renewed its motion for summary judgment.  This time, the judge granted the motion, finding Ms. Trevejo did not have sufficient contact with New Jersey to be an “inhabitant” of New Jersey, and thus was not protected by the LAD.

Ms. Trevejo appealed. Last month, in Trevejo v. Legal Cost Control, Inc., the Appellate Division reversed the trial court’s ruling and reinstated the case.  It first ruled that it was improper for the trial court to limit discovery the way that it did.  For example, it found Ms. Trevejo should have been able to explore the ways Ms. Trevejo electronically communicated with LCC’s office in New Jersey, including by telephone, computer network connection, and other forms of “virtual” contact.

The Appellate Division also ruled that the lower court had erroneously concluded that the LAD only protects “inhabitants” of New Jersey, noting the word “inhabitant” is not used anywhere in the statute other than its preamble, and is not used in any published legal opinion interpreting it.  Rather, the LAD expressly protects any “person,” and not only inhabitants of New Jersey.

The Appellate Division also recognized that the LAD obviously does not protect all people.  Rather, the key questions are: whether the discriminatory conduct took place in New Jersey; and whether the employee bringing the claim was “employed” in New Jersey.

Although the Appellate Division made it clear that an individual does not have to live or physically work in New Jersey to be protected by the LAD, it did not establish a test to determine if someone is “employed” in New Jersey sufficient to come within the statute’s protection.  Rather, it recognized that, based on “current computer technology and the forward thinking concept of ‘telecommuting,’” the question of who is protected by the LAD “is a novel question of law that involves highly significant policy considerations.”  But the Court did provide significant guidance regarding this issue by listing factors that would be relevant to determining whether Ms. Trevejo is protected by the LAD, including:

  1. Where she and her co-employees work;
  2. Whether her coworkers work from home;
  3. The type of software she and other employees used to work for LCC remotely;
  4. The location of the computer server that connected her and other employees to LCC’s New Jersey office;
  5. The location of the Internet service provider that allowed her and other employees to remotely connect to LCC’s New Jersey office;
  6. The individual(s) who decided to fire her and the reasons they decided to fire her; and
  7. Any other relevant contact she or her work had with New Jersey.
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