Mark Saloman, a partner in our Berkeley Heights and New York offices, and Jeff Shooman, an attorney in our New York and Berkeley Heights offices, filed a brief by Amicus Curiae in skuse litigation on behalf of the New Jersey Employers Association (EANJ). Skuse is consistent with the position Mark and Jeff took on behalf of the EANJ before the Supreme Court. If you have any questions about decision-making, resolving labor disputes in New Jersey, or other work- or employment-related issues, please contact Mark at msaloman@fordharrison.com or Jeff at jshooman@fordharrison.com. Of course, you can also contact the FordHarrison lawyer you usually work with. Transactional attorneys must also ensure that they use the font size that meets the requirements of New Jersey`s Plain Language Act, N.J.S.A. 56:12-10, for all consumer contracts. In pre-trial detention by the New Jersey Supreme Court, in light of Alexander Defina v. Go ahead and jump 1, LLC, 2019 N.J. Super. Unpublished. LEXIS 1404 (N.J. Super. Ct.
App. Div. 2019), concluded that language that waives a “proceeding” in favor of arbitration does not sufficiently inform a consumer or employee that arbitration differs from the decision of their claim by a court or jury, the test set out in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014). To avoid such disputes, authors must scrupulously adhere to the terminology described in Atalese, including comparing arbitration to a decision of a court, judge or jury. In light of the Supreme Court`s decision in the Flanzman case, the Appeals Division recently detained a case and ordered the trial court to reconsider its decision rejecting an attempt to force arbitration. In Falzo v. Greene Jumpers South Plainfield, LLC, No. A-2134-19T2, 2020 WL 5944006 (Ca. Div.
October 7, 2020), the owner and operator of Sky Zone, an indoor trampoline park, appealed the Law Division`s orders dismissing a defendant`s request under Rule 4:6-2(e) to dismiss and enforce the arbitration and dismiss the defendant`s request for reconsideration. The defendant requested that the action for damages related to the bodily injury she had suffered as a guest at the defendant`s establishment be dismissed and that an arbitration clause be enforced in a “participation agreement” signed by the plaintiff before entering the trampoline park. The development of binding arbitration clauses is becoming increasingly complex in New Jersey. Make sure you choose your (magic) words wisely. Atalese and Flanzman appear to be deviating from “New Jersey public policy that encourages the use of arbitration as an alternative forum.” Fawzy v. Fawzy, 199 N.J. 456, 468 (2009). The Atalese Tribunal sought to address these public policy concerns when it concluded that arbitration agreements did not need to contain “magic words” to be maintained.
Similarly, the Flanzman court said, “We do not want to imply that there must be certain `talismanic words` in the rights agreement that replace the right to a court decision,” “but to understand the effects of a waiver of a jury trial, the parties must generally determine in some way which rights replace those that have been waived.” Flanzman, ___ N.J. Super. ___ (Zettel op. bei 6). Recently, the New Jersey Appeals Division noted that in a multi-contractual relationship between demanding parties, the wording of the recent contract, which states that the parties “may” settle disputes according to certain rules and other parameters, means that arbitration is permissive rather than mandatory. Medford Township School District v. Schneider Electric Buildings America`s, Inc., A-5798-17, — N.J. Super. —, 2019 N.J. Super. LEXIS 54 (N.J. Super.
Ct. App. Div. April 26, 2019). The court said it could have enforced the agreement if it had said, “Any party can.. or if the parties had not used the term “should” in so many other parts of the contracts. This is another example that shows the need for clarity and consistency: say what you want to say. The arbitration clause provides, in part, that the parties “any dispute, claim or controversy arising out of or in connection with the use of Sky Zone`s premises.” Arbitration should be “administered by jams [formerly known as the Judicial Arbitration and Mediation Service] in accordance with its 16.1 Rules and Expedited Arbitration Procedures.” In addition, the clause contained confirmation by the plaintiff that she knew that the “Jam Arbitration Rules were available online for [her] review [[.]” However, two years before the date the applicant signed the agreement, JAMS was no longer authorized to provide services in New Jersey. The New Jersey Supreme Court has apparently pointed out that using the “mediation” heading for an arbitration clause could confuse the average reader, especially if the clause states that arbitration is governed by the designated forum`s non-existent “commercial mediation rules.” Kernahan v Home Warranty Admin. by Fla., Inc., 236 N.J.
301 (2019). Here, the lesson is old: use clear language and do not confuse mediation and arbitration! Any claim or controversy arising out of or in connection with [the Claimant`s] employment relationship, its termination or otherwise between [the Claimant] and [the Respondent] shall be settled by final and binding arbitration in lieu of a jury or other civil proceeding. This arbitration agreement covers all claims, whether tort or contract, arising by law or common law, including, but not limited to, claims for breach of contract, discrimination or harassment of any kind. [The plaintiff] must pay the California Superior Court filing fee in effect at that time for the costs of the arbitration (i.e., filing fees, administrative fees, and arbitrator fees). One court confirmed that clauses to indicate consent to arbitration by requiring employees to “confirm” receipt of the arbitration policy will not be enforced, especially if the agreement is part of a “training” web video. Skuse v. Pfizer, Inc., 457 N.J. Super. 539 (approximately Div. 2019). The clear lesson is that arbitration agreements should not require employees to recognize the policy, but rather to “accept” the arbitration in order for the arbitration clause to be binding.
Federal and state laws provide that arbitration agreements are deemed binding and irrevocable, unless a party can “demonstrate a reason that exists at law or in equity for the revocation of a contract.” 9 U.S.C § 2, N.J. Rev. Stat. § 2A:23B-6. Even if, as is often the case, an employee has no way to negotiate the specific terms of an arbitration agreement, the courts will likely consider them enforceable as long as there is a “meeting of minds,” meaning that both parties have knowingly agreed to all the terms of the contract. In recent weeks, New Jersey courts have made a number of important decisions for transactional attorneys drafting arbitration clauses. Here are some of the highlights. The New Jersey Supreme Court rejected the Appeals Division`s reasoning and overturned it. The New Jersey Supreme Court noted that Congress, through the Federal Arbitration Act (FAA) and the New Jersey Legislature through the New Jersey Arbitration Act (NJAA), have both issued guidelines favoring arbitration agreements. In addition, both the FAA and the NJAA provide “standard” provisions that allow a court to rule on matters that have been concealed by the Flanzman parties in the arbitration agreement in question, including the process of identifying and selecting an arbitrator. Given the standard provisions of the NJAA that contain terms that are absent from an arbitration agreement, the performance of an agreement by a court supplemented by these standard terms is consistent with the common law principles of New Jersey contract law.
While the parties may choose to agree on an arbitrator or arbitration body, or to establish a plan for such a designation, the standard provisions of the NJAA are available to parties who leave these issues unresolved. .