Argued March 18, 2014
Approved for Publication June 19, 2014.
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1922-11.
Alan L. Krumholz argued the cause for appellant ( Krumholz Dillon, P.A., attorneys; Mr. Krumholz, on the briefs).
Edward T. Groh argued the cause for respondent.
Before Judges MESSANO, ROTHSTADT and LISA.
[436 N.J.Super. 311] LISA, J.A.D. (retired and temporarily assigned on recall).
The primary issue in this appeal is whether a contractual provision, contained in an employment application, by which the employee waives the two-year statute of limitations applicable to claims against the employer and shortens the period for such claims to six months, should be enforceable. The trial court rejected the employee's unconscionability argument. The court found that the provision was clear in its terms, was conspicuously placed in the application form, and was reasonable and not contrary to any public policy. Therefore, the court concluded that the provision was enforceable. In a secondary argument, plaintiff contended that a second application form he completed, in conjunction with a promotion several years after his initial hire, which did not contain the shortened limitation period, constituted a novation and voided the initial contract. The court rejected this argument, noting that a novation is never presumed and finding nothing in the second application or in the circumstances of its completion to suggest any intent to void the provisions of the initial contract.
Because plaintiff filed his complaint nine months after his alleged wrongful termination by defendant, the court granted defendant's summary judgment motion and dismissed the complaint as time-barred. On appeal, plaintiff makes the same arguments [436 N.J.Super. 312] before us as he made in the trial court. We agree with the trial court's analysis and conclusions, and we affirm.
In August 2007, plaintiff approached defendant, a retail furniture company, seeking employment. The customer delivery manager gave plaintiff an application form, which he was asked to complete and return. Plaintiff took the form home with him. The form was written completely in the English language. Plaintiff was born in 1971 in Argentina and, after obtaining
an eighth-grade education there, he came to the United States in 1987 at about age sixteen. Plaintiff contends that his ability to read or speak English is limited, although he had been living in this country for twenty years at the time of this application process.
Plaintiff completed the application form at home with the assistance of a close friend who was fluent in English and who translated the application from English to Spanish. According to plaintiff, his friend translated " [o]nly the places where I had to fill out." Plaintiff acknowledged that as his friend was assisting him he had no questions about the application. The next day, plaintiff returned the completed and signed form to defendant, handing it to the same person from whom he had received it. Plaintiff acknowledged that when he returned the form he did not have any questions about it.
The application form is two pages in length. Toward the bottom of the second page, immediately above the signature line, there is an " Applicant's Statement" in the following form:
Applicant's Statement -- READ CAREFULLY BEFORE SIGNING -- IF YOU ARE HIRED, THE FOLLOWING BECOMES PART OF YOUR OFFICIAL EMPLOYMENT RECORD AND PERSONNEL FILE.
I understand this employment application is not a promise of an offer of employment. I further understand that should I receive and accept an offer of employment, my employment does not constitute any form of contract, implied or [436 N.J.Super. 313] expressed, and such employment will be terminable at will either by myself or Raymour & Flanigan upon notice of one party to the other. My continued employment would be dependent on satisfactory performance and continued need for my services as determined by Raymour & Flanigan.
I authorize investigation of all statements contained in this application. I understand that misrepresentation or omission of facts called for are grounds for a refusal to offer employment or a cause of dismissal if hired.
I AGREE THAT ANY CLAIM OR LAWSUIT RELATING TO MY SERVICE WITH RAYMOUR & FLANIGAN MUST BE FILED NO MORE THAN SIX (6) MONTHS AFTER THE DATE OF THE EMPLOYMENT ACTION THAT IS THE SUBJECT OF THE CLAIM OR LAWSUIT. I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.
I WAIVE TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, OR RELATING TO, MY EMPLOYMENT WITH RAYMOUR & FLANIGAN, INCLUDING CLAIMS OF WRONGFUL OR RETALIATORY DISCIPLINE OR DISCHARGE; CLAIMS OF AGE, SEXUAL, SEXUAL ORIENTATION, RELIGIOUS, PREGNANCY OR RACIAL DISCRIMINATION; CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT, TITLE IX, AMERICANS WITH DISABILITIES ACT, AGE DISCRIMINATION IN EMPLOYMENT ACT, EMPLOYEE RETIREMENT INCOME SECURITY ACT, FAIR LABOR STANDARDS ACT, AND ALL OTHER APPLICABLE NON-DISCRIMINATION, EMPLOYMENT OR WAGE AND HOUR STATUTES.
Plaintiff affixed his signature and inserted the date immediately below this statement. As depicted above, the prefatory language is in bold-faced large print, and the final two paragraphs, containing the shortened limitation period and jury trial waiver, are completely capitalized.
About one week after submitting the application, a representative of defendant contacted plaintiff and asked him to submit to a drug screen. Plaintiff successfully completed it and was hired as a helper in mid-September 2007. The two-page application form was the only document plaintiff completed in connection with his hiring.
In 2010, defendant promoted plaintiff to the position of driver, in which he would be the leader of a team making furniture [436 N.J.Super. 314] deliveries. Plaintiff acknowledged in his deposition that in the new position he would be responsible for the team's performance, he would be required to read the delivery manifests, which were written in English, and he would need to communicate with customers primarily in English.
The driver's application form consists of four pages. It requires the applicant to provide personal information, employment history, and information regarding driving experience and driving record. Plaintiff filled in the relevant information and signed the form. This form does not contain any provisions shortening the period ...