New Jersey Finds Jury Waiver Too Ambiguous To Encompass Whistleblower Claims
New Jersey’s Appellate Division recently held that a jury waiver provision was unenforceable as to a former employee’s statutory employment claims. In Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3, __ N.J. Super. __ (Feb. 6, 2017), plaintiff signed an employment agreement with his then-employer that provided:
HPS and RM [employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.
Following his termination of employment, Noren sued Heartland alleging, inter alia, violation of the Conscientious Employee Protection Act (“CEPA”), New Jersey’s employment whistleblower law. The court denied Noren’s demand for a jury trial based on the jury-waiver provision in his employment agreement, and after a lengthy bench trial, dismissed Noren’s complaint. Noren appealed, challenging the application of the jury waiver provision to his CEPA claim.
On appeal, the court focused upon the fact that CEPA and the New Jersey Law Against Discrimination (“NJLAD”) expressly guarantee a right to a jury trial. Given the statutorily guaranteed right, the Appellate Court determined that in order for the waiver to be effective it must “clearly explain (1) what right is being surrendered and (2) the nature the claims covered by the waiver.” The court found that the jury waiver at issue was unenforceable because it did not make any “reference to statutory claims and did not define the scope of the claims as including all claims relating to Noren’s employment.”
The Court noted that while it is “preferable for a waiver of rights provision to explicitly . . . include statutory rights, it is possible to provide the clarity necessary for a valid waiver without such specific reference.” In doing so, the court relied upon the Court’s earlier decision in Martindale v. Sandvik, Inc., 173 N.J. 76 (2002), which upheld a mandatory arbitration provision because the language at issue – which provided for a waiver of any action or proceeding relating to individual’s employment, or the termination thereof – was clear, unambiguous and sufficiently broad to encompass plaintiff’s statutory claims.
In light of the Noren decision, New Jersey employers should review their jury waiver provisions to ensure that they clearly provide that an employee is waiving a right to a jury trial as to all claims relating to the individual’s employment and termination thereof, and consider referencing the statutory rights provided under CEPA and the NJLAD.