Whistleblowing Remedies In New Jersey

Tuesday, February 1, 2011

Recent decisions by the New Jersey Supreme Court and the Appellate Division clarify the definition of “adverse employment action” that triggers New Jersey’s “whistleblower law,” known as the Conscientious Employee Protection Act (CEPA).

Adverse Employment Action

John Seddon had worked for Dupont 30 years when he filed a complaint with OSHA, the federal office for occupational safety and health. Seddon’s complaint involved DuPont’s practice of inspecting employee vehicles at the gate of the plant.

Employees had to stand by the side of a busy road, in the dark, with traffic passing nearby. After this, DuPont made Seddon report to a new shift supervisor, a significant change, as he had never had a supervisor before.

Seddon later reported a possible safety issue with a chemical reactor for which he was responsible, comparing the risk of chemical explosion to the infamous one in Bhopal, India. At that point DuPont began falsely accusing him of forging his time cards and gave him first-time negative job reviews, culminating in his taking a six month medical leave for “significant dysphoria and vulnerability to depression.”

No Proof of Constructive Discharge

Seddon eventually took a disability retirement. A trial jury awarded him $1.5 million in damages for pain and suffering, lost wages, and punitive damages, and the trial judge awarded him significant counsel fees. DuPont appealed.

The Appellate Division reversed, stating that because Seddon did not allege and prove that he was fired or constructively discharged (the equivalent of firing), then he could not recover lost wages or pain and suffering damages.

Without such damages, said the Appellate Division, Seddon’s punitive damages claim also had to fall. And without such damages, they said, Seddon also was not eligible as a “prevailing party” to receive counsel fees and costs.

The Supreme Court reversed the Appellate Division in every particular, holding that “lost wages are recoverable in a CEPA case, even in the absence of a constructive discharge.”

CEPA and Constructive Discharge

The Appellate Division would have required Seddon to prove a case for constructive discharge. In New Jersey, the “standard” for constructive discharge is that the employer has allowed conditions to become so intolerable that a reasonable person would quit.

This is a very fact-intensive inquiry, and the “reasonable person” standard is objective, but in this case, there was substantial testimony from experts that Seddon had suffered actual psychological damage that rendered him unable to continue working and that his decision to stop working was entirely justified.

The Supreme Court appeared more sympathetic to granting damages, because it determined that even where the employee did not argue constructive discharge, nevertheless, under CEPA he had a right to damages. This was because the employer had retaliated against him while he engaged in protected “whistleblowing” activity.

The Court applied traditional tort law to explain why the DuPont was liable for the damages that flowed from its illegal retaliatory behavior, which included “the right to recover damages for diminished-earning capacity.”


If you, your friends, or loved ones have a New Jersey workplace crisis or concern involving “whistleblower” activities or any other aspect of the employment relationship, make sure to bring those concerns to the attention of a qualified and knowledgeable employment law attorney.