New Jersey Anti-Discrimination Law: New Guidance Clarifies How State Anti-Discrimination Protections Apply to Remote Workers (US)

Squire Patton Boggs Summer Fellow Luis Ayala Gutierrez discusses recent guidance regarding the application of New Jersey’s employment discrimination law to remote workers.

Although the pandemic is (mercifully) largely behind us, many employers who implemented telecommuting arrangements as a pandemic measure have maintained hybrid office/remote or fully remote workforce arrangements, offering employees welcome flexibility and provided employers with a wider pool of jobs from which to draw. But the dramatic increase in remote work arrangements has brought uncertainty about which laws apply to employees who are not physically present in the workplace.

The New Jersey Office of the Attorney General (“AG”) and the New Jersey Division of Civil Rights (“DCR”) recently issued guidance regarding the interpretation of the New Jersey Law Against Discrimination (“NJLAD”) as it relates to specifically with remote workers. Like federal anti-discrimination law, the NJLAD prohibits New Jersey employers from discriminating against employees or applicants based on, among other characteristics, sexual orientation, gender, gender identity, gender expression, age, race, color, national origin, ancestry, religion, and disability. NJSA10: 5-12 (a). The AG and DCR’s May 2024 guidance explains that even fully remote employees—those who perform work for New Jersey employers but are not physically present in New Jersey—are protected under the NJLAD. In other words, an employee does not have to be a resident of New Jersey or even physically work in New Jersey in order to be protected by the NJLAD because the law applies to all employees of a New Jersey employer, regardless of their physical location. The AG and DCR point to the expansive language of the NJLAD—specifically, applying the law to “all persons,” “any person or group of persons,” and “any individual”—as evidence that the NJLAD is not limited to employees who reside or primarily working in New Jersey. Similarly, the guidance concludes, the NJLAD may also extend to remote workers who live in New Jersey but work for an employer in another state, provided the employees can establish a nexus between their employer and the business. his with the state of New Jersey.

Based on this guidance, employers doing business in New Jersey or employing New Jersey-based remote workers must ensure that their employment practices comply with applicable state law, including the NJLAD.