Pending legislation in New Jersey aimed at banning nondisclosure agreements in cases of discrimination, retaliation or harassment also would preclude arbitration agreements in employment contracts, a move some attorneys and law professors said would run afoul of federal law and U.S. Supreme Court precedent that prohibit state efforts to forbid arbitration. Principal Jed Marcus is quoted in the Law360 article, “NJ Arbitration Measure On 'Collision Course' With Fed. Law” by Bill Wichert.

“I have no doubt that any reasonable person looking at that would say that bans arbitrations,” said Jed. “You can't waive any substantive or procedural rights. Well, that would obviously include the right to a jury trial.”

“Any provision which attempts to ban arbitration probably would not pass Supreme Court muster,” Jed added.

Jed said such a prohibition on arbitration would be preempted under the high court's 2011 opinion in AT&T Mobility LLC v. Concepcion, which held that arbitration agreements cannot be treated differently than other contracts.

To read the article on the Law360 website, click here

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