Remote work continues to increase in popularity. According to Forbes, about 25% of workers are working remotely, and this number should continue to rise through 2030. By hiring remotely, New Jersey employers gain access to a wider pool of talented employees than if they only advertised locally. Increasingly, many companies are entirely remote and have no headquarters or home base. Instead, even the company executive works from a home office and employees connect over Zoom.
New Jersey remains committed to stamping out discrimination based on many characteristics, such as race, sexual orientation, gender expression, age, and religion, among many others. Indeed, the state law offers more protection than Title VII of the 1964 Civil Rights Act, which is the main federal antidiscrimination law.
What happens if a remote worker outside New Jersey believes they are discriminated against by a New Jersey-based employer? Does the LAD offer any protection to you?
The Law Against Discrimination Covers Remote Workers
Telework options rose in prominence due to the COVID-19 pandemic, but New Jersey employers have continued to employ remote workers even after the pandemic ended. Some confusion arose over whether workers outside the state were protected by the Law Against Discrimination (LAD) if their employer was based in New Jersey.
In March 2024, the Division on Civil Rights and the Office of the New Jersey Attorney General issued guidance to New Jersey-based companies. This guidance clarified that the Law Against Discrimination contains broad statutory language which guarantees to “all persons” a workplace free of discrimination. And neither “person” nor “employee” had any geographic limitation. Consequently, the law covers employees of New Jersey-based companies and does not distinguish between a worker who resides in New Jersey or one who lives out of state.
As the Attorney General made clear, any worker who believes they are a victim of employment-based discrimination may seek redress under the law against a New Jersey-based employer, whether they work remotely full- or part-time.
Legal precedent supported the Attorney General’s guidance. For example, two appellate cases held that the LAD can extend to certain plaintiffs who work or live outside New Jersey. As one court explained, the LAD was designed to be construed liberally to achieve its purpose of wiping out workplace discrimination. Applying it to out-of-state remote workers is consistent with this broad purpose.
What if Your Employer is Based Outside New Jersey?
Remote work is a popular option for many of our friends and neighbors here in New Jersey. Not all of them are working remotely for a New Jersey company, however. Instead, their employer could be located in California, Hawaii, or Michigan, or some other state. Are these workers protected by the Law Against Discrimination?
Maybe not. The Guidance issued by the Attorney General cautions that remote workers in New Jersey might not be protected if they work for a company located outside the state. Instead, the LAD will apply when a worker can prove some sort of connection or “nexus” between the employer and New Jersey. For example, a company might be headquartered in Florida but also have several offices in New Jersey. Thanks to this substantial physical presence in the state, this company might be subject to the LAD. Everything depends on the facts.
Remote workers in New Jersey might have other protections, even if the LAD doesn’t cover them. For example, their employer could be located in a state with an antidiscrimination law. And, in many cases, federal antidiscrimination laws will protect remote workers as these laws apply nationally to employers of a certain size.
Discrimination in an Age of Remote Work
Remote work has blurred state boundaries. Nonetheless, workers should seek experienced legal advice if they believe they have suffered discrimination in any aspect of employment:
You should also reach out if you believe you are the victim of harassment. We have seen harassment claims even in the context of remote work. For example, employers or coworkers might share offensive or graphic memes or jokes via email or Slack channels, which make working for the company hostile. Many remote workers also join group chats or Zoom calls, where they might experience offensive name-calling or stereotyping.
Remote workers also experience sexual harassment. A worker might be sexually propositioned and offered a raise or threatened with dismissal if they refuse. This type of quid pro quo harassment is one of the oldest forms of workplace discrimination. Remote workers often travel to the “home base” for training or annual gatherings, and quid pro quo harassment can happen there. In other situations, a boss propositions a worker and pressures them to meet in person.
Evidence for Harassment
Although remote work has changed many aspects of daily work, discrimination remains a major problem. Workers should carefully document all examples of harassment, even in a remote-work context. For example, you should preserve emails and voicemails that are harassing or threatening. You can also write down the names of anyone who witnessed or overheard offensive conduct on a Zoom call.
In some ways, working remotely might be to a workers’ advantage. Most of your communications probably come in the form of emails or comments in an online forum. Those are easier to document and preserve, compared to someone who said something offensive to your face or in your presence.
Call Our Office for Assistance
Remote workers need an experienced lawyer who stays ahead of the curve and understands how technology intersects with anti-discrimination law. Attorney Charles Z. Schalk is happy to offer his services to anyone who works for a New Jersey-based employer and has experienced discrimination or harassment. As a partner at Savo, Schalk, Corsini, Warner, Gillespie, O’Grodnick & Fisher, he stays on the leading edge of developments in employment law and has handled many legally complex cases. To find out more about whether he can help, call our office at (908) 526-0707 to schedule a consultation. We keep all communications in the strictest confidence