A New Jersey appeals court has declined to enforce a jury waiver as to statutorily protected whistleblower rights because the provision at issue failed to state adequately the right being surrendered and the claims that were affected.

A former employee argued that the jury waiver in his employment contract did not preempt his statutory right to a jury trial under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 to -14.1. The relevant provision provided, “[employer] and [employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.” Noren v. Heartland Payment Sys., 2017 N.J. Super. LEXIS 12 (Feb. 6, 2017).

Based on the waiver, the trial court denied the employee’s demand for a jury trial on breach of contract and CEPA claims. After a bench trial, the court dismissed the employee’s claims and awarded the employer more than $2 million in fees and costs. The merits of the claims were not before the court on appeal.

The appeals court noted the waiver at issue made no reference to statutory claims and did not define the scope of claims to include all such claims that pertained to the employee’s employment. The Court concluded that the jury-waiver was enforceable as to the employee’s breach of contract claim, but was not enforceable as to his right to a jury trial for his CEPA claim.

A valid jury-waiver provision must include plain language that makes clear – either expressly or by general reference – that specific rights are being waived. Accordingly, employees waiving their statutory right to a jury trial under CEPA and/or the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12, must be apprised of their legal rights and must indicate a clear intent to surrender those rights.

In reaching its conclusion, the Court referenced various waiver provisions in the arbitration context. For instance, in Garfinkel v. Morristown Obstetrics & Gynecology Associates, P.A., 168 N.J. 124 (2001), a provision that provided “any controversy or claim” to arise from the agreement would be settled by arbitration was too ambiguous. In contrast, the arbitration provision in Jaworski v. Ernst & Young US LLP, 441 N.J. Super. 464 (App. Div.), cert. denied, 223 N.J. 406 (2015), was upheld as enforceable because it specifically referenced “state statutes and local ordinances, including state and local anti-discrimination laws.”

While there are no magic phrases, employers must provide adequate notice of the claims that are covered and the nature of the right that is surrendered if they expect a waiver to be upheld in court.