New Jersey courts require a party moving to compel the arbitration of statutory claims to which the right to a jury trial would otherwise attach, to demonstrate that the arbitration agreement clearly and unambiguously puts the claimant on notice that he or she is agreeing to arbitration and waiving the right to a judicial determination of the claim and to a jury trial.
The courts have often applied this requirement to arbitration agreements entered into between employers and employees. Recently, a federal judge raised (but did not decide) the issue of whether New Jersey’s requirement of express waiver language might be preempted by the Federal Arbitration Act, 9 U.S.C. §1 et seq. (FAA) in light of the United States Supreme Court’s decision earlier this year in Kindred Nursing Centers v. Clark, 137 S. Ct. 1421 (2017). See Bacon v. Avis Budget Grp., Civ. No. 16-5939 (D.N.J. June 9, 2017) (McNulty, J.). This article will trace the development of New Jersey’s express waiver requirement and discuss the potential impact given the Kindred Nursing decision.
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