DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION (L-1979-17, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1576-17T3

DAVID F. CALABOTTA,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

June 27, 2019

v.

APPELLATE DIVISION

PHIBRO ANIMAL HEALTH

CORPORATION, DEAN J.

WARRAS, and DANIEL A.

WELCH,

Defendants-Respondents.

_____________________________

Argued May 13, 2019 – Decided June 27, 2019

Before Judges Sabatino, Sumners and Mitterhoff.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Docket No. L-1979-17.

Kathryn Kristine Mc Clure and Mary Anne Sedey

(Sedey Harper Westhoff, PC) of the State of Missouri

bar, admitted pro hac vice, argued the cause for

appellant (Smith Eibeler, LLC, and Mary Anne Sedey,

attorneys; Kathryn K. Mc Clure and Mary Anne

Sedey, of counsel and on the briefs; John D. Lynn

(Sedey Harper Westhoff, PC) of the State of Missouri

bar, admitted pro hac vice, of counsel and on the

briefs).

Martin Warren Aron argued the cause for respondents

(Jackson Lewis PC, attorneys; Martin Warren Aron, of

counsel and on the briefs; Mary L. Moore and

Katerina Rose Mantell, on the briefs).

James Edward Burden argued the cause for amicus

curiae NELA-NJ (Smith Mullin, PC, attorneys; James

Edward Burden, on the brief).

James Patrick Flynn argued the cause for amicus

curiae ANJMA (Epstein Becker & Green PC,

attorneys; James Patrick Flynn, of counsel and on the

brief; David Wayne Garland, on the brief).

James R. Michael, Deputy Attorney General, argued

the cause for amicus curiae the Attorney General of

New Jersey (Gurbir S. Grewal, Attorney General,

attorney; Jason Wade Rockwell, Assistant Attorney

General, of counsel; James R. Michael, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This lawsuit is brought by an Illinois resident against his New Jersey-

based former employer. Plaintiff alleges the company wrongfully denied him

a promotion to a position in New Jersey and thereafter wrongfully terminated

him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination

against him, in violation of the New Jersey Law Against Discrimination

("NJLAD"), based on the fact that his wife was then terminally ill with cancer.

The company maintains it treated plaintiff fairly, that he never applied for the

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promotion, and that it justifiably discharged him for engaging in inappropriate

conduct at a trade show.

The appeal raises two important and novel questions of law.

First, under principles of statutory construction, can the NJLAD protect

nonresident workers and job applicants, despite the fact that the statute's

preamble refers to "inhabitants" of this state?

Second, even if the NJLAD can extend to certain out-of-state plaintiffs,

do choice-of-law principles weigh in favor of applying the law of Illinois

instead to plaintiff's respective failure-to-promote and wrongful discharge

claims?

The trial court concluded that Illinois law, rather than the NJLAD, must

apply to plaintiff's claims of discrimination because he lived in Illinois and

worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to

recognize a cause of action for associational discrimination, the court granted

defendants' motion to dismiss plaintiff's claims with prejudice.

For the reasons that follow, we conclude that the NJLAD,

notwithstanding the solitary reference to "inhabitants" in its preamble, can

extend in appropriate circumstances to plaintiffs who reside or work outside of

this state. However, whether the NJLAD applies to a particular nonresident's

claims turns upon a weighing of the multiple choice-of-law factors set forth in

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3

the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971) (the

"Second Restatement"), as adopted and construed by the New Jersey Supreme

Court.

We hold that New Jersey law, and specifically the NJLAD's ban against

associational discrimination, applies to defendants' alleged failure to give

plaintiff fair consideration for a promotion to a position in New Jersey. The

Second Restatement factors strongly weigh in favor of applying New Jersey

law, not Illinois law, to this failure-to-promote claim. We therefore reverse

the trial court's dismissal of that discrete claim.

As to plaintiff's wrongful discharge claim, we vacate its dismissal and

remand the choice-of-law issue pertaining to that claim to the trial court for

further analysis. We do so to enable the further development of critical facts

bearing on the Second Restatement factors. Among other things, the record

needs to be developed more fully and definitively concerning such things as:

the location(s) of the person(s) within the company who took part in the

decision to terminate plaintiff; the sole or dominant place, if any, that the

decision was made; and the location(s) of plaintiff's conduct that precipitated

his discharge. After those and other facts pertinent to the choice-of-law

analysis are more fully developed, the trial court shall reassess which state has

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4

the "most significant relationship" overall to plaintiff's wrongful discharge

claim.

I.

We glean the following facts and allegations from plaintiff's complaint

and related pleadings, mindful that discovery has not yet been conducted and

credibility determinations have not been made.

A.

Plaintiff's Work in Illinois for Phibro's Subsidiary

Defendant Phibro Animal Health Corporation ("Phibro"), a company

headquartered in Teaneck, New Jersey, develops and sells animal food

additives. Prince Agri Products Incorporated ("Prince Agri"), a subsidiary of

Phibro, handles marketing, product management, research, development, and

technical support. Prince Agri's office is located in Quincy, Illinois, where

plaintiff resided at all times relevant to this case.

In 2008, Phibro hired plaintiff to serve as a Vice President of Marketing

and Technology Deployment at Prince Agri's office. He worked in that

position at Prince Agri in Illinois until his termination in 2016.

When plaintiff was hired, he signed three employment-related form

agreements: a Noncompetition and Nonsolicitation Agreement, an Employee

Invention Agreement, and a Confidentiality and Nondisclosure Agreement.

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All three agreements contained the following provision:

THIS AGREEMENT WILL BE GOVERNED BY

THE LAWS OF THE STATE OF NEW JERSEY

WITHOUT REGARD FOR CONFLICTS OF LAW

PRINCIPLES. I EXPRESSLY CONSENT TO

VENUE IN, AND THE PERSONAL JURISDICTION

OF, THE STATE AND FEDERAL COURTS

LOCATED IN NEW JERSEY FOR ANY LAWSUIT

ARISING FROM OR RELATING TO THIS

AGREEMENT.

[(Emphasis added).]

Each agreement further stated: "This Agreement does not alter the status of

my employment as an at-will employee of [Phibro]."

Defendant Dean J. Warras, the President of Prince Agri, was plaintiff's

direct supervisor. Defendant Daniel A. Welch worked as Phibro's Senior Vice

President of Human Resources.

Plaintiff maintains that Warras's and Welch's offices were located at

Phibro's headquarters in Teaneck. However, in connection with defendants'

motion to dismiss the complaint, Warras certified that his own employment

was based out of Prince Agri's office in Illinois, the state where Warras

maintained a primary residence until approximately August 2016.

While at Prince Agri, plaintiff supervised a team of approximately forty

employees who managed existing product portfolios, identified new products,

conducted research on product use and development, and provided customer

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and technical support. According to plaintiff, he consistently received

excellent annual performance reviews. Among other accolades, the reviews

reportedly stated that plaintiff worked "extremely hard," did an "excellent job,"

"significantly strengthened" his team over the years, and generated "new

credibility and cache in the industry and academic community" for Phibro's

products. According to plaintiff, Phibro never placed him on any type of

"Performance Management Plan" or "formally counseled [him] for

performance or conduct issues."

B.

Disabling Health Issues of Plaintiff's Wife

Plaintiff's wife, Beth Calabotta, was diagnosed with breast cancer in

2008. Following a period of remission, Beth's breast cancer recurred in 2014

and spread to other parts of her body.

Plaintiff contends he openly discussed Beth's health issues and prognosis

with his co-workers and supervisors. According to plaintiff, between 2014 and

2016 Warras periodically asked him questions about Beth's medical condition.

Plaintiff believed that Warras shared the information about his wife's condition

with Welch. Additionally, in May and June 2016, the Quincy Herald-Whig

and the Wall Street Journal featured Beth in prominent news stories that

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discussed her terminal illness. 1

C.

Company Reorganization and the New Jersey Position

In June 2016, Warras informed plaintiff that Phibro was reorganizing its

operations and his responsibilities would be reduced significantly. Under the

reorganization, plaintiff would no longer be responsible for marketing and

project management, and ten to fifteen people would be cut from his sta ff.

Moreover, plaintiff's title would change to Vice President, Research and

Technical Support.

Warras told plaintiff that Phibro had created a new position based at

Phibro's headquarters in New Jersey for a Senior Vice President of Marketing

and Product Management. According to plaintiff, he inquired about who

would be considered for the new position, and Warras responded that an

independent recruiting firm would begin interviewing candidates "in the very

near future." When plaintiff asked whether he would be considered for the

new position, Warras allegedly replied, "I did not think that you would be

interested. The job is in New Jersey and with Beth's situation and all . . . ."

Plaintiff claims he informed Warras and Welch on multiple occasions

1

Beth died in March 2017, about eight months after plaintiff was terminated.

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between June and July 2016 that he "should get serious consideration" for the

new Senior Vice President position, given his marketing and product

management experience at Prince Agri. At one point, Welch allegedly

responded, "I don't know if that is going to happen." Plaintiff requested from

Warras the job description for the new position. According to plaintiff, Warras

assured him that he would get a copy of it. Warras also allegedly promised to

talk to Phibro's senior managers about plaintiff's interest in the post.

Despite these alleged assurances, plaintiff was not interviewed for the

new position and was not provided with the job description. In early July

2016, plaintiff learned that the recruiting firm had interviewed other candidates

for the position. Plaintiff did not receive the promotion.

D.

The July 2016 National Meeting and Plaintiff's Subsequent Discharge

Between July 19 and July 23, 2016, plaintiff and several members of his

team attended a national meeting of the American Dairy Science Association

("ADSA").2

On July 22, 2016, Welch called plaintiff to discuss a "serious problem"

that had arisen at the ADSA meeting during a presentation made by a member

2

The present record does not reveal in which state the ADSA meeting was

held.

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of plaintiff's staff and how plaintiff had handled the situation. The detail s of

this incident are not fully explained in the complaint. At the end of their

phone conversation, Welch suspended plaintiff with pay, "pending further

investigation." Plaintiff claims that, despite his request for details, Welch

never told him what accusations were being investigated.

On or about August 19, 2016, plaintiff met with Warras and Welch.

They told him that they had "corroborated the allegations" against him. The

complaint does not state where this meeting took place. Plaintiff again a sked

what the allegations were, but he claims he was not given an answer. He

asserts he told Warras and Welch that, "he still believed he handled the

situation [at the ADSA meeting] appropriately." They disagreed. Ultimately,

Welch handed plaintiff a draft Separation Agreement and terminated his

employment.

Plaintiff did not sign the Separation Agreement, which proposed that he

give up his right to sue for claims "arising from or in any way connected with"

his employment and termination, in exchange for $117,000 in severance pay.

Paragraph 10 of the unsigned Separation Agreement stated that it "shall be

interpreted for all purposes consistent with the laws of the State of New

Jersey."

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Plaintiff maintains that the deliberations among Warras, Welch, and

other senior executives culminating in their decision not to consider him for

the promotional position, and their subsequent decision to terminate him, all

occurred at Phibro's headquarters in New Jersey. Defendants, however, have

not acknowledged that these decisions and communications were made in or

confined to New Jersey.

According to the representations of counsel at the appellate oral

argument, plaintiff applied for and obtained unemployment compensation from

Illinois state authorities following his discharge. The present record does not

reveal whether plaintiff's unemployment benefits application mentioned his

contention that he was fired for discriminatory reasons.

II.

A.

Plaintiff's Complaint

In March 2017, plaintiff filed a complaint in the Law Division against

Phibro, Warras, and Welch. Count one alleges that defendants discriminated

against him in violation of the NJLAD "on account of his association with a

person with a disability" on two separate occasions: (1) when they refused to

consider him for a promotion in New Jersey, and (2) when they subsequently

terminated his employment. Counts two and three allege that defendants

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Warras and Welch aided and abetted Phibro in violating the NJLAD. Plaintiff

seeks compensatory damages, punitive damages, and statutory attorney fees. 3

B.

The Dismissal of the Complaint and Denial of Reconsideration

Defendants moved to dismiss the complaint under Rule 4:6-2(e). They

argued that, even accepting plaintiff's factual allegations as true, plaintiff has

no viable cause of action under the NJLAD as an Illinois resident who worked

for the company's subsidiary in Illinois.

On September 1, 2017, the trial court dismissed the complaint with

prejudice, holding that "[t]he NJLAD does not apply to employees whose

employment is based outside of New Jersey." The motion judge relied largely

on this court's opinion in Buccilli v. Timby, Brown & Timby, 283 N.J. Super.

6 (App. Div. 1995), in which we found that Pennsylvania law, rather than the

NJLAD, governed a New Jersey resident's claims of discrimination by her

Pennsylvania employer for whom she had worked in Pennsylvania.

3

There is a related federal lawsuit pending. In June 2017, plaintiff filed a

Notice of Charge of Discrimination with the United States Equal Employment

Opportunity Commission ("EEOC"), a claim which factually mirrored his

NJLAD complaint. In July 2017, the EEOC granted him the right to sue under

federal law. Plaintiff thereafter sued defendants in the United States District

Court for the Central District of Illinois, asserting claims against them

exclusively under federal law. That federal lawsuit is stayed, pending the

resolution of this appeal.

A-1576-17T3

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Plaintiff moved for reconsideration. He presented to the court, for the

first time, the three employment agreements he signed in 2008 and the

unsigned Separation Agreement, all of which stated that any lawsuits arising

out of those documents would be governed by New Jersey law. Defendants

argued these employment agreements pertained only to discrete subjects and

were not applicable to plaintiff's present discrimination claims.

On October 27, 2017, the trial court denied plaintiff's motion for

reconsideration, concluding that the proffered agreements did not require the

application of New Jersey law to his claims in this case.

Plaintiff's present appeal ensued.

C.

The Amici on Appeal

After the appeal was filed, the National Employment Lawyers

Association of New Jersey ("NELA-NJ"), a statewide organization of attorneys

who solely or primarily represent persons in employment-related matters,

sought and was granted leave to appear in this appeal as amicus curiae. We

thereafter invited the Attorney General to appear as amicus curiae to address

the novel legal issues of statutory construction and choice-of-law presented.

The Attorney General accepted the invitation and filed an amicus brief. In

addition, we likewise granted the Academy of New Jersey Management

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Attorneys, Inc. ("ANJMA"), an organization of New Jersey lawyers who have

long represented employers in labor and employment matters, leave to appear

as amicus curiae.4

Plaintiff and amicus NELA-NJ argue the trial court should have applied

the NJLAD to both his failure-to-promote and wrongful termination claims.

Defendants and amicus ANJMA counter that the court correctly applied

Illinois law to both claims.

The Attorney General presents a more nuanced position. The Attorney

General asserts that the NJLAD clearly should apply to plaintiff's failure-to-

promote claim, but that the present record is inadequate to resolve whether the

Second Restatement factors call for New Jersey or Illinois law to apply to his

separate wrongful termination claim.

III.

The pivotal question posed in this appeal is whether New Jersey law

(including specifically the NJLAD) or Illinois law applies to each of this

Illinois resident's claims against a New Jersey-based parent company and its

officials. To answer this question, we must consider both the intended scope

4

We express our appreciation for the helpful participation of all three amici in

this case of first impression.

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of the NJLAD as well as choice-of-law principles adopted by the New Jersey

Supreme Court, including relevant portions of the Second Restatement.

A.

De Novo Review

In evaluating the trial court's decision declining to apply New Jersey law

to either of plaintiff's claims, we apply a de novo scope of review. "Choice -of-

law determinations present legal questions, which are subjected to de novo

review." Fairfax Fin. Holdings Ltd. v. S.A.C. Capital Mgmt., LLC, 450 N.J.

Super. 1, 33 (App. Div. 2017).

In addition, appellate review of an order dismissing a complaint for

failure to state a claim under Rule 4:6-2(e) is conducted pursuant to a plenary

scope of review, with no deference owed to the trial court's legal conclusions.

Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114

(App. Div. 2011). We proceed with our analysis guided by these appellate

review standards.

B.

General Choice-of-Law Principles

Several well-established principles of choice of law frame our

discussion.

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To begin with, "When New Jersey is the forum state, its choice-of-law

rules control." Fairfax, 450 N.J. Super. at 34. "[O]ur choice-of-law

jurisprudence has striven to structure rules that will lead to predictable and

uniform results that are fair and just and that will meet the reasonable

expectations of the parties." McCarrell v. Hoffmann-La Roche, Inc., 227 N.J.

569, 573 (2017). We may decide choice-of-law questions on an "issue-by-

issue" basis. Fairfax, 450 N.J. Super. at 34. See also Ginsberg ex rel.

Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super. 198, 230 (App. Div.

2015) (recognizing this principle and also holding that choice-of-law issues at

times may be decided on a defendant-by-defendant basis).

"Procedurally, the first step is to determine whether an actual conflict

exists" through an examination of "the substance of the potentially applicable

laws to determine whether 'there is a distinction' between them." P.V. ex rel.

T.V. v. Camp Jaycee, 197 N.J. 132, 143 (2008) (quoting Lebegern v. Forman,

471 F.3d 424, 430 (3d Cir. 2006)). "A conflict of law arises when the

application of one or another state's law may alter the outcome of the case . . .

or when the law of one interested state is 'offensive or repugnant' to the public

policy of the other." In re Accutane Litig., 235 N.J. 229, 254 (2018) (quoting

Cont'l Ins. Co. v. Honeywell Int'l, Inc., 234 N.J. 23, 46 (2018)). See also

Fairfax, 450 N.J. Super. at 42-43 ("A conflict arises . . . when one state

A-1576-17T3

16

provides a cause of action but the other does not . . . ."). If no such conflict

exists, "then 'there is no choice-of-law issue to be resolved,' Camp Jaycee, 197

N.J. at 143, and the forum state applies its own law, McCarrell, 227 N.J. at

584." In re Accutane, 235 N.J. at 254.

If an actual conflict exists, then New Jersey courts in cases involving

claims of tortious conduct 5 apply the choice-of-law principles described in the

Second Restatement, particularly sections 6, 145, and 146. See In re

Accutane, 235 N.J. at 257-63; Camp Jaycee, 197 N.J. at 135-36.

Section 6(1) of the Second Restatement begins with the threshold

principle that "[a] court, subject to constitutional restrictions, will follow a

statutory directive of its own state on choice of law." Restatement (Second) §

6(1). A choice-of-law analysis "is preempted when our Legislature has

determined that New Jersey public policy requires the application of our

substantive law whenever our courts have jurisdiction over the kind of claim at

issue, regardless of the interest of another state." Fairfax, 450 N.J. Super. at

5

The parties and the amici have fashioned their arguments on a premise that

plaintiff's claims of discrimination in this case are most akin to claims of

tortious conduct rather than claims of breach of contract. See Montells v.

Haynes, 133 N.J. 282, 291 (1993) (treating claims of discrimination under the

NJLAD as most akin to torts and thus subject to New Jersey's two-year statute

of limitations). Cf. Second Restatement § 186 (expressing the applicable

choice-of-law principles for breach of contract claims). We accept that

premise for purposes of our analysis.

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43.

Where the legislative intent cannot be ascertained, either through "an

explicit statutory directive" or "by a process of interpretation and

construction," id. at 47, our courts apply the most-significant-relationship test

in tort matters to resolve choice-of-law questions. See In re Accutane, 235

N.J. at 257-63; Camp Jaycee, 197 N.J. at 135-36. "The [Second] Restatement's

most-significant-relationship test embodies all the elements of [the New Jersey

Supreme] Court's former governmental-interest test and adds 'a series of other

factors deemed worthy of consideration.'" In re Accutane, 235 N.J. at 257

(quoting Camp Jaycee, 197 N.J. at 142 n.4).

To determine whether New Jersey has the most significant relationship,

we consider sections 145 and 146, which provide the general principles for tort

actions, as well as section 6, which outlines universal principles for choice-of-

law issues. In re Accutane, 235 N.J. at 260.

Choice-of-law "analysis begins with section 146 and the presumption [in

tort-based cases] that the law of the state where the injury occurs applies." Id.

at 259. However, that "presumption may be overcome if 'some other state has

a more significant relationship with the parties . . . based on an assessment of

each state's contacts' viewed through the prism of section 145 . . . and section

6." Ibid. (quoting McCarrell, 227 N.J. at 590).

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Specifically, section 146 provides:

In an action for a personal injury, [6] the local law of

the state where the injury occurred determines the

rights and liabilities of the parties, unless, with respect

to the particular issue, some other state has a more

significant relationship under the principles stated in §

6 to the occurrence and the parties, in which event the

local law of the other state will be applied.

[Second Restatement § 146 (emphasis added).]

Section 6 provides a list of seven, non-exclusive general factors to be

considered when deciding which state's law applies:

(a) the needs of the interstate and international

systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and

the relative interests of those states in the

determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of

law,

(f) certainty, predictability and uniformity of result,

and

6

We consider plaintiff's claims to encompass allegations of "personal injury,"

since his complaint seeks damages for, among other things, pain and suffering

and emotional distress. None of the counsel before us have argued to the

contrary.

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(g) ease in the determination and application of the

law to be applied.

[Second Restatement § 6(2).]

"The factor that deserves the greatest emphasis in a particular case is

that which furthers the most relevant policy interest . . . ." Fairfax, 450 N.J.

Super. at 48. Notably, "[w]hen 'the purposes sought to be achieved by a local

statute . . . would be furthered by its application to out-of-state facts, . . . this is

a weighty reason why such application should be made.'" Ibid. (quoting

Second Restatement § 6(2) cmt. e). "In general, it is fitting that the state

whose interests are most deeply affected should have its local law applied."

Second Restatement § 6(2) cmt. f.

Section 145, meanwhile, requires consideration of "certain contacts" to

determine which state "has the most significant relationship to the occurrence

and the parties under the principles stated in § 6." Second Restatement §

145(1), (2). Those contacts include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

(c) the domicil[e], residence, nationality, place of

incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between

the parties is centered.

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[Second Restatement § 145(2).]

"The contacts analysis is 'not merely quantitative,'" as "[i]ts purpose is to

assess the contacts in terms of the guiding touchstones of the Second

Restatement's section 6." Fairfax, 450 N.J. Super. at 51 (quoting Camp

Jaycee, 197 N.J. at 147). Moreover, "the contacts 'are to be evaluated

according to their relative importance with respect to the particular issue.'"

Fairfax, 450 N.J. Super. at 51 (quoting Second Restatement § 145).7

This legal framework first requires us to consider whether an actual

conflict exists between the potentially applicable New Jersey and Illinois laws.

If such a conflict exists, then section 6 logically entails a two-step assessment.

First, we must consider whether the Legislature intended for the NJLAD to

encompass plaintiff's claims as alleged in the complaint. If so, then, we must

consider whether the Legislature also intended the terms of the NJLAD to

override conflicting Illinois law as to those claims. If the legislative intent is

unclear, then further analysis is warranted to resolve the choice-of-law

question, using the factors in section 6(2) and the most-significant-relationship

test expressed in section 145.

7

The recently adopted Restatement of the Law, Employment Law (Am. Law

Inst. 2015), does not provide any guidance on choice-of-law issues arising in

the employment context.

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IV.

A.

Apparent Conflict Between the States' Laws

As a starting point, we proceed with a premise that there is an actual

conflict between New Jersey law and Illinois law germane to plaintiff's claims

of "associational" discriminatory treatment by his employer.

The NJLAD prohibits "any unlawful discrimination against any person

because such person is or has been at any time disabled . . . unless the nature

and extent of the disability reasonably precludes the performance of the

particular employment." N.J.S.A. 10:5-4.1. Although the NJLAD does not

expressly set forth a cause of action for discrimination based upon a plaintiff's

association with a member of a protected class, case law has recognized the

viability of such an associational claim under the statute.

This court has held "where the plaintiff is wrongfully discharged for

associating with a member of a protected group [under the NJLAD], that is the

functional equivalent of being a member of the protected group." O'Lone v.

N.J. Dep't of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998). Accordingly, a

plaintiff closely associated with such a disabled person or other member of a

protected class can serve as the "functional equivalent" of an "aggrieved

person" under section 5-13 of the NJLAD. See Downs v. U.S. Pipe & Foundry

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Co., 441 F. Supp. 2d 661, 662-65 (D.N.J. 2006) (similarly recognizing an

employee's protection under the NJLAD from being discriminated against

because of his spouse's disabling mental health disorders that caused him to

miss time from work on short notice). 8

In comparison, Illinois law has yet to recognize a cause of action for

associational discrimination. Nothing in that state's general antidiscrimination

provision, the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/2-101 to -107

(2019), expresses such associational protection, although plaintiff reserves the

right to argue such protection is implied.

Hence, we shall conduct our choice-of-law analysis with an assumption

– which the trial court shared – that there is an actual conflict between New

Jersey law and Illinois law as to the viability of plaintiff's associational

discrimination claims. 9

8

The New Jersey Supreme Court has not repudiated this theory of

associational discrimination. Given the Court's historically broad

interpretation of the NJLAD, we have no reason to think the Court disapproves

of such a cause of action.

9

Although they did not brief it, at oral argument on appeal, counsel also

pointed out that New Jersey law differs from Illinois law with respect to the

need to exhaust administrative remedies and the availability of punitive

damages. See 775 Ill. Comp. Stat. 5/8–111(D); 775 Ill. Comp. Stat. 5/8B-104.

But see 775 Ill. Comp. Stat. 5/10-102(C). We need not resolve here those

choice-of-law issues, which were not addressed by the trial court.

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B.

Section 6 of the Second Restatement

We next must consider, under section 6(1) of the Second Restatement,

whether our State Legislature has issued "a statutory directive" that calls for

the application of the NJLAD to the facts of this case involving a nonresident

plaintiff who worked for a New Jersey parent company outside of New Jersey.

This question essentially involves two components. First, did our

Legislature intend the NJLAD to be broad enough to extend to certain

nonresidents such as plaintiff who seek employment in New Jersey? Second,

if so, has the Legislature issued through the NJLAD a choice-of-law

"directive" that compels our courts to apply New Jersey law to such plaintiffs

and their employers, rather than conflicting out-of-state laws?

1.

Legislative Intent as to the NJLAD's Breadth

As to the first query, we are persuaded that our Legislature has

expressed an intention to allow certain nonresident plaintiffs to receive the

benefits and protections of the NJLAD. Such an intention about the NJLAD's

breadth may be gleaned from both the words of the statute and the expansive

policies that underpin it.

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24

"Any fair analysis" of the scope of a statute "begin[s] . . . by looking at

the statute's plain language, which is generally the best indicator of the

Legislature's intent." Lippman v. Ethicon, Inc., 222 N.J. 362, 380-81 (2015)

(quoting Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)). "If

the plain language leads to a clear and unambiguous result, then [the]

interpretive process is over." Richardson v. Bd. of Trs. Police & Firemen's

Ret. Sys., 192 N.J. 189, 195 (2007). See also State v. Harper, 229 N.J. 228,

237 (2017). "However, if a statute's plain language is ambiguous or subject to

multiple interpretations," then courts look to extrinsic evidence to inform their

analysis, "including legislative history." Parsons v. Mullica Twp. Bd. of

Educ., 226 N.J. 297, 308 (2016).

Because this case concerns claims under the NJLAD, "special rules of

interpretation also apply." Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 108

(2010). "When confronted with any interpretive question" pertaining to the

NJLAD, our courts "must recognize" the NJLAD's pronouncement of its broad

public policy goals. Smith v. Millville Rescue Squad, 225 N.J. 373, 390

(2016).

The NJLAD is "remedial legislation, intended 'to eradicate the cancer of

discrimination[,]' protect employees, and deter employers from engaging in

discriminatory practices." Acevedo v. Flightsafety Int'l, Inc., 449 N.J. Super.

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25

185, 190 (App. Div. 2017) (quoting Jackson v. Concord Co., 54 N.J. 113, 124

(1969)). It is well established that the NJLAD should be "liberally construed

'in order to advance its beneficial purposes.'" Smith, 225 N.J. at 390 (quoting

Nini, 202 N.J. at 115). "[T]he more broadly [the NJLAD] is applied, the

greater its antidiscriminatory impact." Nini, 202 N.J. at 115. Because

workplace discrimination is "still a pervasive problem in the modern

workplace, even 'novel arguments' advanced by victims . . . 'require our utmost

care and attention.'" Smith, 225 N.J. at 390 (quoting Quinlan v. Curtiss-

Wright Corp., 204 N.J. 239, 260 (2010)).

The NJLAD's broad and strong language provides ample support for

plaintiff's position that, subject to other choice-of-law factors, he may bring

claims under the statute, despite the fact that he lived and worked for

defendants out-of-state. N.J.S.A. 10:5-4 states that, "[a]ll persons shall have

the opportunity to obtain employment . . . without discrimination . . . . This

opportunity is recognized and declared to be a civil right." (Emphasis added).

Moreover, N.J.S.A. 10:5-5(a) defines the term "person" as "one or more

individuals, partnerships, associations, organizations, labor organizations,

corporations, legal representatives, trustees, trustees in bankruptcy, receivers,

and fiduciaries." The statute's plain language notably does not limit the

definition of "person" to New Jersey residents or employees.

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26

Furthermore, N.J.S.A. 10:5-5(e) declares that the definition of the term

"employer" broadly includes "all persons as defined in subsection (a) of the

section unless otherwise specifically exempt." (Emphasis added). Equally

broadly, N.J.S.A. 10:5-12(a) prohibits the discriminatory refusal "to hire or

employ" and the discriminatory discharge of "any individual" on the basis of

that individual's protected characteristics, which include race, gender, religion,

and disability, among others. (Emphasis added). The statute does not restrict

the definition of "any individual" to New Jersey residents or employees. See

also N.J.S.A. 10:5-13 (permitting "[a]ny person claiming to be aggrieved by an

unlawful employment practice or unlawful discrimination" to file a complaint

with the Division of Civil Rights, or to bring a lawsuit in the Superior Court).

a.

That said, defendants point out that the NJLAD's preamble contains

more restrictive language that creates a potential interpretive ambiguity about

the statute's coverage. They assert this ambiguity undercuts plaintiff's

interpretation.

The preamble, found at N.J.S.A. 10:5-3, states in relevant part:

The Legislature finds and declares that practices

of discrimination against any of its inhabitants,

because of . . . disability . . . are matters of concern to

the government of the State, and that such

discrimination threatens not only the rights and proper

privileges of the inhabitants of the State but menaces

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27

the institutions and foundations of a free democratic

State . . . .

The Legislature further declares its opposition to

such practices of discrimination when directed against

any person . . . in order that the economic prosperity

and general welfare of the inhabitants of the State may

be protected and ensured.

The Legislature further finds that because of

discrimination, people suffer personal hardships, and

the State suffers a grievous harm.

[(Emphasis added).]

We recognize "[a] court may turn to a statute's preamble as an aid in

determining legislative intent." DiProspero v. Penn, 183 N.J. 477, 496 (2005).

A preamble "should be read in harmony with the statute that it introduces,

whenever possible." Ibid. However, "[t]o the extent that the preamble is at

variance with the clear and unambiguous language of the statute, the preamble

must give way." Id. at 497.

As underscored above, the first and second paragraphs of the NJLAD's

preamble make reference to "inhabitants" of this State, when explaining the

Legislature's intent in enacting the NJLAD. Although the NJLAD does not

define the term "inhabitants," a more general statute, N.J.S.A. 1:1-2, directs us

to construe the word "population . . . as synonymous with 'inhabitants.'" That

Title 1 provision, in turn, defines the term "population" as "the population as

shown by the latest Federal census effective within this State." N.J.S.A. 1:1 -2.

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Thus, in enacting the NJLAD, the Legislature aimed to at least protect New

Jersey inhabitants, i.e., residents, from the harmful effects of discrimination.

Nonetheless, the preamble does not state that the NJLAD was intended

to protect only New Jersey residents. Even within the preamble itself, the

word "inhabitants" is not consistently used throughout the rest of the preamble,

let alone the full statute. For instance, the second paragraph of the preamble

declares the Legislature's "opposition to such practices of discrimination when

directed against any person," not solely against inhabitants. N.J.S.A. 10:5-3

(emphasis added). The third paragraph further declares that because of

discrimination, "people" – not just inhabitants – "suffer personal hardships."

Ibid.

As we have noted, the word "inhabitant" does not appear at all in the

operative provisions of the statute outside of the preamble. Given that context,

"the preamble must give way," DiProspero, 183 N.J. at 497, and it does not

cloud our reading of the unambiguous and broader operative provisions of the

NJLAD.

We recently addressed a similar issue of statutory interpretation in

Scheeler v. Atlantic City Mun. Joint Ins. Fund, 454 N.J. Super. 621, 624-25

(App. Div. 2018), a decision involving the Open Public Records Act

("OPRA"), N.J.S.A. 47:1A-1 to -13. There, we considered whether an out-of-

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29

state resident had standing to file an OPRA request, or whether rights under

OPRA were limited to "citizens" of New Jersey based upon language

contained in OPRA's preamble.

We acknowledged in Scheeler that the Legislature's use of the term

"citizens of this State" in the preamble of OPRA "arguably created an

ambiguity[,]" about its breadth. Id. at 627. However, we determined that the

ambiguity was "easily resolved" by reading the statute "sensibly" and

considering "the context in which the phrase 'citizens of this State' is used, the

terms the Legislature used in the rest of OPRA, and . . . the statute's history

and purpose." Ibid. We held that "[b]ecause the more specific provisions of

OPRA refer to 'any person,' and because OPRA is to be construed broadly to

achieve the Legislature's over-arching goal of making public records freely

available, . . . the right to request records under OPRA is not limited to

'citizens' of New Jersey." Ibid. That same reasoning applies here.

More to the point, we stated in dicta in Scheeler that the NJLAD's use of

the term "inhabitants" in its preamble "does not mean that the [NJ]LAD only

protects New Jersey residents and allows discrimination against visitors from

other states." Id. at 631 n.4. We noted that the NJLAD's "specific provisions

addressing discrimination in housing, employment[,] and public

accommodations prohibit discrimination against any 'person' or any

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30

'individual.'" Ibid. (citing N.J.S.A. 10:5-4; N.J.S.A. 10:5-12). We reaffirm

that observation here.

b.

Having carefully examined the NJLAD's text and extensive legislative

history, we detect no expression of legislative intent to limit the statute's

protections to job applicants who live in New Jersey, or to those employees

who perform all of their employment functions in New Jersey. As a general

matter, the Legislature has amended the NJLAD numerous times in order to

expand its scope, to protect additional classes of people, and to allow more

claims. See Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 357-58

(2016) ("The Legislature's activity has been in one direction. It has acted only

to strengthen the [NJ]LAD, adding more protections and for more classes of

individuals."). And, again, it is well-established that the NJLAD must be

construed liberally toward its overarching goal of eradicating discrimination.

Quinlan, 204 N.J. at 259; Acevedo, 449 N.J. Super. at 190.

We therefore conclude that, despite the inclusion of the term

"inhabitants" in the preamble of the NJLAD, the Legislature did not intend to

confine the scope of the statute's protections solely to plaintiffs and claimants

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who reside in this State. 10

2.

Is There Legislative Intent to Override Another State's Laws?

The next related question under section 6(1) of the Second Restatement

is whether the Legislature has clearly directed that our courts must apply the

NJLAD to cases where choice-of-law issues arise because of conflicting laws

of other states. On this point, we are unpersuaded by plaintiff and the NELA-

NJ that the Legislature has imposed such a choice-of-law mandate.11 Just

10

By analogy, the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210, and

the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -

14, have been interpreted to allow certain out-of-state plaintiffs to pursue

claims against New Jersey defendants under those statutes. See, e.g., Real v.

Radir Wheels, Inc., 198 N.J. 511, 527 (2009) (holding a Missouri resident who

purchased car via an internet auction without ever visiting New Jersey could

assert CFA claim against New Jersey-based seller); Aguerre v. Schering-

Plough, 393 N.J. Super. 459, 475-76 (App. Div. 2007) (finding Argentinian-

nationals successfully asserted CEPA claims against their New Jersey-based

employers). See also Feldman v. Hunterdon Radiological Assocs., 187 N.J.

228, 241 (2006) ("[C]ourts frequently compare CEPA to [NJ]LAD, applying

the legal tests and frameworks developed under one to the other, 'because

CEPA, like [the NJLAD], is a civil rights statute'" (quoting Kolb v. Burns, 320

N.J. Super. 467, 477 (App. Div. 1999))); D'Agostino v. Johnson & Johnson,

Inc., 133 N.J. 516, 533 (1993) (holding that a common-law whistleblower

claim brought by a Swiss-national plaintiff against a New Jersey-based

defendant employer was governed by New Jersey law because "New Jersey

law regulates conduct in New Jersey.").

11

Notably, the Attorney General has not joined in plaintiff's argument

claiming a statutory choice-of-law "directive" within the meaning of section

6(1) of the Second Restatement is intended to override contrary laws of other

(continued)

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32

because a New Jersey statute could embrace certain claims by out-of-state

parties does not necessarily mean that those New Jersey laws inexorably must

override contrary laws from other jurisdictions.

A key purpose of our multi-factor choice-of-law jurisprudence, as

embodied in the Second Restatement, is to promote interstate comity and due

respect for the laws and interests of sister states, rather than automatically

impose New Jersey law in some provincial or overly aggressive fashion. For

example, our Supreme Court in In re Accutane, 235 N.J. at 254, recently ruled

that the terms of the New Jersey Product Liability Act ("NJPLA") do not

automatically apply to all plaintiffs from all jurisdictions who may be injured

by products made in New Jersey but, instead, that the appropriate choice-of-

law depends upon a balancing of Second Restatement factors under sections

(continued)

states. Although we are not bound to adopt the Attorney General's position,

we give due deference to the Attorney General as the legal adviser to State

Government, see N.J.S.A. 52:17A-4(e), and also because of the Attorney

General's institutional role in enforcing the NJLAD and in overseeing the

Division of Civil Rights, N.J.S.A. 10:5-8. See Quarto v. Adams, 395 N.J.

Super. 502, 513 (App. Div. 2007) (recognizing the Attorney General's

interpretation of a statute is entitled "to a degree of deference" because of his

or her "special role as the sole legal adviser to most agencies of State

Government").

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33

6(2) and 145.12

We reject plaintiff's suggestion that the Legislature has mandated our

courts to bypass a multi-factor analysis in this case. To do so would run

counter to the philosophy of the most-significant-relationship test and the

choice-of-law jurisprudence pronounced by the Court in recent years. In re

Accutane, 235 N.J. at 254; McCarrell, 227 N.J. at 573. We do not construe the

NJLAD to bulldoze over the conflicting laws of other states that also have a

nexus to the case.

Moreover, the Legislature has shown that when it wishes to issue a

"statutory directive" on choice-of-law, it knows how to do it. See, e.g., New

Jersey Franchise Practices Act, N.J.S.A. 56:10-7.3(a)(2) (mandating that

franchisors cannot require franchisees to waive their rights "otherwise

available under the laws of this State"); Uniform Commercial Code, N.J.S.A.

12A:1-301(a), (b) (directing that the law of New Jersey generally shall apply

to a transaction "bearing an appropriate relation to this State," unless the

parties agree to the contrary). No comparable language dictating choice-of-

law appears in the NJLAD. There is simply no "statutory directive" here

qualifying under section 6(1).

12

After conducting that detailed analysis, the Court concluded in In re

Accutane that the NJPLA applied to all 532 cases before it involving plaintiffs

from numerous states suing a New Jersey drug manufacturer. Id. at 265.

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V.

Lacking a statutory directive, we now must consider how the Second

Restatement's balancing factors in sections 6(2), 145, and 146 apply to the

choice-of-law analysis for the claims pleaded in this case. We conduct that

analysis by separately considering plaintiff's failure-to-promote claim and

then, in turn, his wrongful discharge claim.

A.

The Failure-to-Promote Claim

Plaintiff argues that, even though he is an Illinois resident who worked

for defendants in Illinois, the law of New Jersey should govern his claim that

Phibro and its agents discriminated against him by failing to consider him for

the promotion to the new position. In particular, he emphasizes that the new

position was in New Jersey, the company officials allegedly made the

promotional decision in New Jersey, and the defendant company is based in

New Jersey.

As a threshold matter, defendants contend that plaintiff never undertook

any steps to apply for the New Jersey position, and accordingly his failure -to-

promote claim is not viable. Plaintiff contends to the contrary that he

repeatedly expressed interest in the post, and that defendants thwarted him

from applying. We need not resolve that factual dispute here. The posture of

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35

this case is on a motion to dismiss a claim on its face under Rule 4:6-2(e). As

such, we must presume, for present purposes, that plaintiff's factual allegations

pled in the complaint are true. Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 772 (1989). Consequently, we proceed with the choice-

of-law analysis with a supposition that plaintiff did, in fact, pursue the

promotion, without prejudice to defendants demonstrating otherwise in the

litigation after discovery.

The trial court did not fully analyze the Second Restatement factors in

its rulings. Instead, it chiefly relied on the choice-of-law aspects of this court's

1995 opinion in Buccilli, a case that preceded the Supreme Court's 2008

opinion in Camp Jaycee adopting the approach of sections 6 and 145 of the

Second Restatement.

In Buccilli, the plaintiff was a New Jersey resident working as a

paralegal for the defendant law firm in its Philadelphia office. Buccilli, 283

N.J. Super. at 9. The firm also maintained an office in Cherry Hill, New

Jersey. Ibid. After the plaintiff was terminated, she filed an NJLAD claim in

New Jersey Superior Court alleging sex discrimination. Id. at 9-10. The trial

court dismissed her claim "on the ground that it could be decided only in a

Pennsylvania court" under Pennsylvania law, not the NJLAD. Id. at 10, 13.

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We reversed in Buccilli, holding that the plaintiff's claim could be

adjudicated in our Superior Court, but under Pennsylvania law. Id. at 13-15.

We agreed with the trial court that "[o]nly Pennsylvania, not New Jersey,

substantive law governs" because the "[p]laintiff's employment began and

ended in Pennsylvania. She worked exclusively in that state and the conduct

which she alleges was unlawful occurred there." Id. at 10. Based on those

facts, we held that "the damage claim of a New Jersey resident for her

allegedly wrongful dismissal from out-of-state employment is governed by the

law of the state in which she was employed." Id. at 10-11. We reasoned that

"making the rights of each of several co-workers dependent on his or her state

of residence would be an entirely unreasonable result" from the employer's

perspective. Id. at 11-12.

Although we do not believe the choice-of-law outcome in Buccilli is

inconsistent with the Second Restatement factors, the trial court's dispositive

reliance on that case in the present matter was misplaced. The factual

allegations before us, as pleaded in the complaint, are materially

distinguishable from Buccilli.

Indeed, in several respects, the present facts are the converse of Buccilli.

Here, plaintiff resides outside of this state, and the defendant company is based

in New Jersey. Unlike Ms. Buccilli, plaintiff worked for the company in his

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37

state of residence, but sought a promotion to a position in New Jersey. He

contends the discriminatory conduct by defendants occurred in New Jersey,

whereas in Buccilli the alleged discriminatory conduct took place in

Pennsylvania.

Defendants and ANJMA focus upon passages in Buccilli in which we

observed that Ms. Buccilli's "employment began and ended in Pennsylvania,"

that she "worked exclusively in that state," and that "the conduct she alleges

was unlawful occurred there." Id. at 10. However, the defendants' business

was located in Pennsylvania, and there was no nexus to New Jersey other than

Ms. Buccilli's residency in this State. We continue to agree those

circumstances correctly tipped the scales in Buccilli in favor of the application

of Pennsylvania law to that particular plaintiff's claims. 13

Even so, in the wake of the Supreme Court's subsequent precedent in

Camp Jaycee and its adoption of the Second Restatement factors, Buccilli

should not be misread to impose a bright-line choice-of-law principle that all

employment discrimination claims must be governed by the law of the state

where a plaintiff exclusively or principally worked. Although a plaintiff's

13

Plaintiff, the NELA-NJ, and the Attorney General do not argue that we need

to overrule or repudiate Buccilli in order to reverse the trial court's choice-of-

law decision in this case.

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38

place of work is surely an important consideration, it is not always dispositive.

Other aspects of the case may at times override it.

A rigorous application of sections 6(2), 145, and 146 factors to plaintiff's

failure-to-promote claim shows that New Jersey law, not Illinois law, must

govern that particular claim. Most of those factors are heavily influenced by

the fact that the new position sought by plaintiff and other potential applicants

was going to be located in this state, where the defendant company Phibro is

based.

For starters, we are persuaded that under section 6(2)(a), the "needs of

the interstate . . . systems" are generally best served by applying the law of the

state where a job opening will be filled. Indeed, that coincides with the

expressed desire of defendants and the ANJMA to have uniformity in the law

applicable to the same group of employees or prospective employees. If a job

vacancy is in New Jersey, it would be unwieldy for an employer to have each

applicant's quest for the post individually governed by the law of the state or

country in which he or she presently happens to live. Instead, it makes sense

to have all applicants treated under one set of state laws. The "needs" of the

system favor such uniformity in a hiring context.

Turning to subsections (b) and (c), the policies and interests of this state

and other jurisdictions are fairly accommodated by applying local law to an

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39

employer's conduct in filling a job opening. There is little reason to think that

other jurisdictions would want their laws extended to hiring decisions made

elsewhere, particularly if that meant, reciprocally, that employers in their own

states would have to grapple with applying the laws of numerous other

jurisdictions each time they filled a position that drew job-seekers from other

places.

Next, subsection (d) concerns the "protection of justified expectations."

Here, a person such as plaintiff seeking a job in New Jersey would reasonably

expect the laws of New Jersey to govern the hiring and selection process. So

too would Phibro, as a New Jersey employer. Indeed, although they do not

literally cover plaintiff's claims, the agreements drafted by Phibro reciting that

New Jersey law governs various other aspects of plaintiff's work relationship

are at least evidence of such company expectations.

As for subsection (e), the "basic policies" underlying antidiscrimination

laws favor applying the NJLAD to the hiring of workers who will be employed

in this state. The strong and expansive public policies of the NJLAD, which

we have already discussed, would be weakened if each job applicant did not

get the full benefit of those protections.

Further, the values of "certainty, predictability, and uniformity of result"

under subsection (f) are logically advanced by having New Jersey

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40

antidiscrimination laws apply to each applicant for a job located in New

Jersey. So would the "ease" in determining and applying that single set of

state laws, consistent with section 6(2)(e).

The enumerated factors of sections 145 and 146 of the Second

Restatement for tort-based claims also point towards applying New Jersey law

to plaintiff's failure-to-promote claim.

Regarding section 146, it is unclear where the "place of injury" occurred

because discovery has not been conducted. We recognize that the "injury" to a

disappointed job-seeker arguably is felt by each applicant in the place he or

she resides, here being Illinois. Even so, the complaint alleges that the place

where the discriminatory denial of the promotion occurred was New Jersey,

although that locale is not conceded by defendants. Because the place of

injury relating to this claim is not easily identified from the reco rd, In re

Accutane, 235 N.J. at 260, we must turn to section 145.

Under section 145(1), which cross references the factors in section 6 we

have already discussed, New Jersey plainly has the most significant

relationship to the failure-to-promote claim. The various "contacts" set forth

in section 145(2)(a) through (d) weigh in favor of applying New Jersey law to

this failure-to-promote claim.

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41

Regarding section 145(2)(a), the place of plaintiff's injury is, as we have

noted, debatable. In addition, under section 145(2)(b), the place of the

defendants' alleged wrongful conduct is also presently unclear. The

considerations of domicile, residency, nationality, place of incorporation, and

place of business under section 145(2)(c) have mixed aspects. But the overall

weight of those considerations manifestly tips in favor of New Jersey, the state

of Phibro's business and where the new position was to be located. Moreover,

under section 145(2)(d), New Jersey would be the place where the parties '

future relationship would be "centered" upon filling the position.

All in all, the Second Restatement analysis under sections 6, 145, and

146 produces a logical and overarching nexus to New Jersey with respect to

plaintiff's failure-to-promote claim. The trial court erred in ruling otherwise

and applying Illinois law to that particular cause of action. We accordingly

reverse the court's dismissal of that claim.

B.

The Wrongful Discharge Claim

As the Attorney General aptly recognizes, the choice-of-law analysis for

plaintiff's wrongful discharge claim is more difficult than the failure -to-

promote claim, especially given the present state of the limited record. The

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42

state with the most significant relationship to that particular claim is not yet

readily apparent. We mention in that regard a few preliminary considerations.

Plaintiff worked for defendants in Illinois, the state where he also lived.

He was removed from that Illinois position by his New Jersey-based employer.

The parties do not agree on the location(s) where the company officers made

the decision to fire plaintiff. The record is also uninformative about the state

where plaintiff allegedly acted improperly at the trade show, and exactly where

the ensuing communications took place that led to his removal.

Given this context, the factor-by-factor Second Restatement analysis

may differ with respect to plaintiff's wrongful discharge claim, as compared to

his failure-to-promote claim. For example, plaintiff's post-discharge conduct

in obtaining unemployment benefits under the laws of Illinois arguably may

affect section 6(2)(d) ("the protection of justified expectations"). 14 In addition,

because the job from which plaintiff was fired was located at the Illinois

office, the company arguably would have reasonable expectations that all of its

supervisors and employees at that office, including plaintiff, would be

14

In making this observation, we do not suggest that plaintiff is estopped from

invoking New Jersey's antidiscrimination laws because he obtained

unemployment benefits from the only state in which he presumably could seek

them. We leave it to the trial court to assess to what extent plaintiff's action in

obtaining that benefit under Illinois law is an important facet of the analysis.

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43

commonly governed by Illinois employment laws. The "place of injury" under

sections 145(2)(a) and 146 also seems to point to Illinois.

On the other hand, if plaintiff can establish that the company's decision

to fire him was made or centered in New Jersey, that would be a counterweight

on the New Jersey side of the scale. Many other facts and factors may also

bear upon the calculus.

We do not adopt plaintiff's argument that if the decision to terminate him

was made by individuals physically located in New Jersey, that singular nexus

must necessarily overcome all other factors that may weigh elsewhere. For

example, if hypothetically the firing decision were made by company officials

while they all were on a business trip in Florida, that happenstance surely

would not require Florida law to apply. The state where the decision was

made – even assuming that is a singular place that can be ascertained – is

simply one of many factors in the overall mix in identifying the state having

the most significant relationship to that claim.

Rather than attempt to resolve this discrete choice-of-law assessment on

an incomplete and disputed record, we remand that issue for a fuller

development of the facts. Those facts should enable a new, more informed

ruling by the trial court applying sections 6(2), 145, and 146 factors of the

Second Restatement to plaintiff's wrongful discharge claim. The trial court

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44

shall oversee the discovery needed to develop these issues, and reconsider its

choice-of-law ruling upon renewed motion practice.

We do not forecast the outcome of this process, except to note that it

would be legally permissible for New Jersey law to apply to plaintiff's failure-

to-promote claim and for Illinois law to apply to his wrongful discharge claim.

Conversely, the application of New Jersey law to both claims remains a

conceivable option as well, depending on the development of the record

affecting the Second Restatement factors.

VI.

We conclude with two observations that concern the practical

significance of our decision today.

First, we are cognizant that the choice-of-law analysis becomes

increasingly more complicated in our world as employees and their supervisors

more often perform their work tasks remotely in multiple locations rather than

in a traditional common physical location. The "office" where an individual

works can be an elusive or non-existent concept these days. Work is now

conducted often via digital means transcending jurisdictional boundaries.

These trends invariably complicate the application of geographic factors in

determining which states' laws apply to an employment relationship, absent

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45

agreement of the parties. We do not presume in this opinion to begin to

resolve those innumerable hypothetical scenarios.

Our second parting observation is that we expect employers will attempt

to resolve uncertainty about the governing law by including in employment

agreements clear and explicit choice-of-law provisions. Of course, such

provisions in form employment contracts must be sufficiently clear in order to

bind the parties, Martindale v. Sandvik, Inc., 173 N.J. 76, 95-96 (2002), and

not contrary to constitutional or statutory principles. In any event, we

anticipate that the analytic difficulties of the present case – in which there is

no applicable written employment contract containing an enforceable choice -

of-law provision – will occur less often in the future.

VII.

Reversed on the failure-to-promote claim, and vacated and remanded on

the wrongful discharge claim, in accordance with the terms of this opinion.

The trial court shall convene a case management conference within

thirty days. The amici each shall duly advise the trial court whether they wish

to continue to participate in some fashion at the trial level in any further

proceedings. We do not retain jurisdiction.

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46