by Julie Colin Providing speedier and more efficient procedures for resolving employment disputes can save both employers and employees time and money. Recently, our New Jersey judiciary has answered a question that has been on the minds of many employers with regard to limiting such costs and even liability to employees. That question is whether an employee can waive a statutory entitlement to a jury trial by agreement with the employer. Most of the statutory entitlements under both Federal and State law, such as the Family Leave Act, the Americans with Disabilities Act, and the New Jersey Law Against Discrimination provide the aggrieved employee the option of demanding a trial by jury. In two cases that have been heard within the past year, the courts have made it clear that so long as the language drafted by the employer is clear, and the employee accepts a position with knowledge of that provision, a waiver of rights to a jury trial, usually in favor of arbitration is valid. Prior to these decisions, employers and lawyers alike questioned whether courts would enforce contractual language drafted by employers which serves to negate rights established through the legislature.
The courts have been careful to remind employers that if they choose to limit an employee’s statutory right to access to a jury trial, such waiver must be made in clear and unambiguous terms. The court will look to the contract and its contents to determine if the language put the employee on notice of such waiver. Prior to these decisions, there had been some doubt that the courts would enforce such a contract over the rights of the employee contained in the legislation. In one recent case decided by the court, the employer included a clear notice of waiver in the employment application. The court found that the language was clear and that the employee, by signing the application for employment, agreed to arbitrate any matter concerning the terms and conditions of employment should the employee accept the job.
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