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Tuesday, April 2, 2019

New Jersey Whistleblower Claims and LAD Retaliation Claims

New Jersey employees may file whistleblower claims under the New Jersey Conscientious Employees Protection Act (CEPA) and discrimination claims the New Jersey Law Against Discrimination (LAD) simultaneously within the same lawsuit.

However, a possible exception to recovery under CEPA is that one cannot recover damages under both the anti-retaliatory provision the LAD and CEPA when it is the exact same complained of facts that give rise to the retaliation claim because it would be a dual recovery for essentially the same retaliation claim.

New Jersey’s whistleblower statute, CEPA, is one of the strongest whistleblower statutes in the Country. It prohibits employers from taking any retaliatory action against an employee in part because the employee discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes, is in violation of a law, or a rule or regulation, which includes employer violations of NJ statutes such as LAD.

The Lad Also Has an Anti-Retaliation Provision That Prohibits an Employer from Retaliating Against an Employee Who Reports, i.e., Whistleblows, Violations of the LAD.

The LAD also has an anti-retaliation provision that prohibits an employer from retaliating against an employee who reports, i.e., whistleblows, an employer’s violations of the LAD. The anti-retaliation for whistleblowing under the LAD provision states:

10:5-12 (d). It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has sought legal advice regarding rights under this act, shared relevant information with legal counsel, shared information with a governmental entity, or filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

When the CEPA Whistleblower Claim and the Lad Claim Are Alleging Different Facts Giving Rise to Different Types of Claims, Both May Prevail Within the Same Lawsuit.

If the Whistleblower claim under CEPA and the LAD claim are alleging different facts giving rise to different types of claims, as when the LAD claim is a separate race, gender, disability etc., discrimination claim, distinct from a retaliation claim as defined in 10:5-12 (d), then it is possible for both claims to prevail within the same lawsuit. CEPA specifically states that rights and remedies under other statutes are not diminished or effected.

It states 34:19-8. Other rights, remedies unaffected

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

If a Plaintiff Is Alleging Employer Retaliation for the Employee’s Reporting Violations of the Lad, the Plaintiff Will Ultimately Have to Choose Under Which Statute to Proceed with this Type of Whistleblower Retaliation Claim, CEPA or the LAD, Prior to Trial.

However, there are many instances where this exception under CEPA (to not be able to prevail on a LAD whistleblowing/retaliation claim if there is an identical CEPA claim) do not apply, when discrimination claims under the LAD are factually and actually distinct from anti-retaliation Whistleblower provisions of CEPA.

When a Plaintiff May Prevail in Both a Whistleblower CEPA Claim and Lad Claim

This law firm has been successful in filing lawsuits and recovering money for clients who had both CEPA whistleblower and LAD claims. Examples of when a plaintiff may prevail in both a whistleblower CEPA claim a LAD claim within the same lawsuit and would be:

  • An employer retaliates against an employee who refuses to participate in fraud on a shareholder which retaliation is prohibited under CEPA; and the same employer retaliates against the same employee because the employee complained about race discrimination under the LAD. Both these claims could prevail under the two statutes within the same lawsuit because they are distinct claims.
  • An employer retaliates against a certified health care professional, who reasonably believes acts of the employer constitutes improper quality of patient care and reports it, and then employer learns the certified health care professional is a lesbian and discriminates against her, and she brings a sexual orientation discrimination claim under the LAD.
  • An employer retaliates against employee for refusing to participate in illegal dumping of chemicals in a river and the employee brings a CEPA claim, and the same employee is disabled and requests an accommodation for his disability, and the employer refuses the accommodation, and the employee brings a failure to accommodate disability claim under the LAD.
  • An employer retaliates against employee for testifying before a public body conducting a hearing into the employer’s illegal use of public funds, and the employee brings a CEPA claim, and the employer retaliates against the same employee who reported sexual harassment and brings a LAD claim.  

DO NOT SIT ON YOUR RIGHTS!

Do not sit on your rights, or you may lose the right to file your claim.

If you think you have been retaliated against, it is essential for you to contact an experienced, competent and successful employment whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced, competent and compassionate employment attorney who will be aggressive about enforcing your rights.  I am successful in bringing whistleblower lawsuits and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.

 



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