On June 27, 2025, attorney Jon Green of Green Savits was honored to be a featured speaker at the New Jersey State Bar Association’s “Hot Tips in Employment Law” Seminar. This annual event brings together leading voices in employment law to share timely, practical insights that help attorneys across the state stay ahead of complex legal developments.
During his presentation, Jon delivered a crucial “hot tip” on an often-overlooked procedural challenge in employment discrimination cases - subpoena enforcement in arbitration, especially under the Federal Arbitration Act (FAA). His talk drew attention to the significant difference between federal and state arbitration rules when it comes to compelling witness testimony and obtaining documents.
Arbitration: A Complex Landscape for Discrimination Claims
Many employees and employers are bound by arbitration clauses, but few understand the critical procedural limitations that can arise. Jon’s presentation offered a vital warning: If your arbitration agreement is governed by the FAA, you may not be able to subpoena non-party witnesses for pre-hearing depositions. That limitation could significantly impact your ability to prove claims under the New Jersey Law Against Discrimination (LAD), where evidence of pretext is often key.
However, Jon pointed out a key distinction: New Jersey’s Arbitration Act (NJAA) provides more flexibility. Under the NJAA, parties can enforce subpoenas for discovery and depositions - a critical advantage for plaintiffs seeking to uncover discriminatory motives through testimony or third-party records.
“Understanding whether your arbitration agreement is governed by federal or state law could determine whether you’re able to fully prepare your case,” said Jon Green. “This difference is not just academic - it could affect the outcome.”
Case Law and Practical Takeaways
Jon also reviewed foundational New Jersey case law - Garfinkel, Martindale, Atalese, and Skuse - to help attorneys assess whether an LAD claim is even arbitrable in the first place. From contract interpretation to the scope of discovery, his presentation offered both strategic insights and practical guidance for employment lawyers navigating arbitration.
Key points included:
- The governing rules often depend on the language in the employment contract or handbook.
- Arbitrators can issue subpoenas, but under the FAA, courts can only enforce those subpoenas if the witness is summoned to the hearing—not a pre-hearing deposition.
- New Jersey’s Arbitration Act allows more extensive discovery powers and provides judicial mechanisms for enforcement.
Why It Matters
In employment discrimination cases, uncovering intent is everything. When key witnesses or documents lie outside of the employer’s control, being able to obtain them can make or break a claim. For employees and attorneys alike, it’s essential to know whether their arbitration agreement provides the tools needed for fair discovery.
At Green Savits, our New Jersey Employment Law Attorneys stay on top of these evolving legal landscapes to provide the most strategic, informed representation possible, whether your case is in court or arbitration.
Speak With a Trusted New Jersey Employment Law Attorney
If you’re facing a workplace discrimination issue or navigating an arbitration clause in your employment agreement, we can help. Contact Green Savits today at 973-965-8571 or contact us online to schedule a consultation with one of our experienced attorneys.