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Wednesday, August 14, 2019

NJ Employees Have Whistleblower Protection under CEPA and Common Law

NJ employees have Whistleblower Protection under both the CEPA statute and the lesser known common law, which whistleblower common law protection in the legal profession is referred to as a “Pierce” claim.

The relevant statutory whistleblower protection is the New Jersey Conscientious Employee Protection Act (CEPA). CEPA, under § 34:19-3, mandates in part that an employer is prohibited from taking any retaliatory action against an employee because he/she discloses, or threatens to disclose to a supervisor or public body; or objects to, or refuses to participate in any activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law,  or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment, or, in the case of an employee who is certified health care professional, reasonably believes constitutes improper quality of patient care.

An employee’s whistleblower statute claim under CEPA arises when the employee reports or refuses to participate in as described above, what they reasonably believe to be the employer’s illegal conduct and is then suspended, terminated, or has other retaliatory adverse action taken against him/her by the employer.

Under NJ’s common law claim, an employee has a whistleblower cause of action, a “Pierce claim,” for wrongful termination when the termination is contrary to a clear mandate of public policy.

Common law whistleblower claims are decided by the courts by looking at the facts of the particular case to determine if the employer’s motivation for the suspension, termination, etc., is in violation of public policy. Courts may look at judicial decisions, legislative notes, mandates by the executive branch of the state, rules established by commissioners of state agencies, in some instances, professional codes of ethics, as well as regulations and statutes.

Common law whistleblower claims may apply to blue collar and white collar employees. Just because an employee is not a “professional” does not mean he/she may not have a common law whistleblower claim.

When there is a common law whistleblower claim and statuary CEPA claim, both the CEPA claim and the similar common law whistleblower claim may be pled in the same lawsuit. However, at the close of the discovery period before the matter proceeds to Summary Judgment, the plaintiff should choose under which legal theory to proceed. This is similar to when a Plaintiff files a lawsuit with an NJLAD retaliation claim and a CEPA claim in some instances; i.e., when the claims arise under the same set of supporting facts as discussed, the article published April 2, 2019.

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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