Not all of an employee’s reports or complaints to a supervisor about the employer’s business practices that involve other employees are “protected activity”. If it is protected activity and the employer retaliates, the retaliation is illegal.
If an employee reports to a supervisor, that another employee is discriminating, or harassing him or creating a hostile work environment because of the employee’s protected class status, i.e., based on race, disability, age, etc., the reporting about the offending employee is a protected activity under the retaliation provision of the New Jersey Law Against Discrimination.
But if an employee is just disgruntled in general and complains to the boss that he/she doesn’t like the way the boss or others do things and recommends what he/she thinks is a better method, even when it is better for the business, the complaining is not a protected activity, and any resulting consequences by the employer is not actionable retaliation. It would be under the “business judgement rule”. Under the New Jersey Conscientious Employee Protection Act, the exception is when the reporting or complaints entail what the employee reasonablely believes to be the employer, or another employee acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent , is violating a law.
It is illegal for an employer to retaliate against an employee because the employee engaged in a “protected activity”. Under the New Jersey Conscientious Employee Protection Act, “protected activities” include reporting to the employer, reasonable beliefs that the employer was in violation of state or federal laws or regulations. Protected activities could also be when an employee reports acts of other employees who are acting directly or indirectly on behalf of/or in the interest of an employer with the employer's consent, which acts the reporting employee reasonably believe are contrary to law.
By way of example,
- You work in motor vehicle plant and reported that you saw another employee dumping vats of the plant’s used oil into a river to save the employer money rather than by proper disposal, thereby violating environmental laws.
- You have knowledge that an accounting employee is purposely “cooking” the books to commit fraud or avoid the employer’s paying employees their true earned commissions.
- You have knowledge that co-worker restaurant employees mislabel contents of food in order to make them more marketable and increase sales, putting those with severe food allergies or medical problems at risk.
- You witnessed a co-worker medical records clerk altering and falsifying medical records to help the employer receive higher insurance payments.
- You witnessed co-workers physically abusing animals at a kennel, violating animal cruelty laws.
As in all general rules, there are always exceptions and broader issues to consider. If an employer has a policy of open air meetings for all employees to voice their opinions about the workplace, and one classification of persons is treated negatively or disparately when stating opinions as to where and how things could be improved, but other classifications of persons are not treated negatively for stating their opinions, it could be evidence of an illegal bias.
For example, male employees can give candid critiques of what the employer is doing/not doing effectively, and the employer welcomes the feedback, welcomes the reporting from the male employees. But when females employees make the same suggestions, they are treated in a disparaging manner and subsequently treated more dismissively. While this disparate treatment may not be an adverse action for an illegal retaliation claim, it could be evidence of a discriminatory bias against women.
What You Can Do
If you engaged in a protected activity in your workplace by reporting legally dubious acts of other employees who you believe were directly or indirectly acting on behalf of your employer with the employer's consent and think that your employer is retaliating against you, you should contact a experienced employment law attorney to explore your legal options in the safest way for you.
I am an experienced and passionate employment attorney who will be aggressive about enforcing your rights and finding redress for you. Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today a for a free consultation.
Hope A. Lang, Attorney at Law serves clients throughout southern and northern New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.