Whistleblower Protection in New Jersey: What Are Your Rights?

Sunday, December 4, 2016

We represent employees who stand up against management, do the right thing, and are punished as a result. We stand by them to get their lives and their finances back together and hold wrongdoing employers accountable for breaking the law. Acting as a whistleblower and reporting illegal acts to upper management or to a government agency takes a lot of guts. We respect our clients’ integrity, fight to protect their legal rights and interests, and seek the full measure of their economic justice and civil rights.

New Jersey’s Conscientious Employee Protection Act (CEPA) makes it illegal for an employer to take any retaliatory act against an employee because he or she,

  • Discloses, or threatens to disclose, to a manager or a government entity an activity, policy or practice of the employer (or another employer with a business relationship to his/her employer),
  • That the employee reasonably believes is in violation of law, or, if a licensed or certified health care professional reasonably believes an improper quality of patient care is occurring,
  • Gives information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law or quality of patient care, by the employer or another employer, with whom there is a business relationship, or,
  • Provides information about the deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity,
  • Provides information concerning any believed criminal or fraudulent activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity,
  • Objects to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes,
    • Violates a law (or if the person is a licensed or certified health care professional, that improper quality of patient care is occurring),
    • Is fraudulent or criminal, or
    • Is not compatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
  • The protection against retaliation when a disclosure is made to a public body applies if the employee,
    • Brought the activity, policy or practice to the attention of a supervisor of the employee by written notice, and
    • Gave the employer a reasonable opportunity to correct the activity, policy or practice.
  • Disclosure is not required when the employee reasonably believes the activity, policy or practice is known to one or more supervisors of the employer, or
  • Where the employee fears physical harm as a result of the disclosure, if the situation is emergency in nature.

The law defines “retaliatory act” as an action taken by an employer to discharge, suspend or demote an employee, or some other adverse employment action concerning his or her terms and conditions of employment. Depending on the facts of the case an independent contractor may be considered an employee under the law.

If there is a CEPA claim in a lawsuit,

  • The employee must reasonably believe the employer’s conduct violated a law, a regulation or a clear mandate of public policy. His or her belief need not be correct, but he or she must at least have a reasonable belief that it is.
  • The employee needs to show his or her activity is a “protected activity” or “whistleblowing activity” under the law. He or she “blew the whistle” on his or her employer, disclosed or threatening to disclose the employer’s questionable conduct or refused to participate in such illegal conduct.  No matter the situation the employee must act in good faith not just go through the motions in hopes of making money by filing a successful lawsuit.
  • The employee must prove he or she suffered a retaliatory act which can include termination, demotion, suspension or any other adverse employment action taken against the employee. This includes job conditions so extremely bad that a reasonable person in that situation would quit, known as constructive discharge. This can be a single act or a series of acts if the overall impact on the employee is adverse or negative.
  • It’s rare that there’s direct proof of retaliation (an admission by a person or documentary evidence explicitly stating what happened and why) so plaintiffs can use circumstantial evidence to prove his or her case (other employees in similar circumstances who didn’t blow the whistle received better treatment).
  • The plaintiff must prove it’s more likely than not there’s a connection between the protected activity and the retaliation.
  • It’s enough if the plaintiff can show retaliation due to the protected activity played any role in the employer’s decision the employee.
  • If a plaintiff proves retaliation happened because of the protected activity he or she would win the case but must also show damages due to the employer’s illegal acts. Damages can include back pay (lost wages from the past), front pay (future wages lost due to termination or demotion) and interest.  Depending on the facts of the case a successful whistleblower claim could also include awards for attorneys’ fees and punitive damages (meant to punish the employer, not compensate the employee) as well.

If you have been retaliated against for reporting employer misconduct, refusal to engage in misconduct  or giving information or testifying before a government body please contact our office to arrange a consultation. We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, plus evening appointments during the week by pre-arrangement only.