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Monday, April 12, 2021

NJ Employment Retaliation, Termination for Objecting to Covid-19 Safety Violations

The New Jersey Superior Court ruled in favor of an employee who complained to the employer about unsafe Covid-19 practices in the workplace in a whistleblower case.

Unlawful Retaliation for Objecting to Employer’s Failure to Follow Covid-19 Health Safeguards

As was recently decided in the case of Mark Loeb v. Vantage Custom Classics, Inc., if your employer retaliated against you for your complaining about or objecting to what you reasonably believed was the employer’s failure to follow proper health safeguards in the workplace as to Covid-19, you may have a whistleblower claim under the New Jersey Conscientious Employee Protection Act (CEPA.)

If You Notified Employer That You Were Exposed to/or Had Contracted Covid-19

If you reported to your employer that you were exposed to Covid-19 and you wanted to follow proper government and/or medical guidelines as to quarantine, etc., and your employer retaliated against you, you may have also have a CEPA claim.

It Is Helpful, but Not Absolutely Essential, If You Can Tell Your Employer What Law You Believe the Employer Is Violating

It is helpful to your claim if you are a whistleblower in a Covid-19 matter, but not absolutely necessary, for you to cite to an exact regulation, law, governmental order or public policy directive issued by the NJ Department of Health, the Centers for Disease Control, or OSHA or other such heavy authority, that you believe your employer is violating.

In Loeb v. Vantage Custom Classics, Inc., a CEPA case heard in Essex Superior Court in November of 2020, the employer had terminated the Plaintiff Mark Loeb, who was the Chief Operating Officer of the Defendant Vantage Customs Classic Inc. (“Vantage” ) after Loeb had complained about the employer’s failure to notify its employees of their exposure to Covid 19 infected co-workers.

Loeb filed a CEPA lawsuit, alleging he was fired for whistleblowing. According to the Court Opinion, Vantage faced its first positive COVID-19 case of one of its workers, on March 15, 2020. This employee was believed to have begun feeling sick on March 13, 2020 and called out on March 15, 2020, informing Vantage that she had tested positive for covid-19. Loeb asserted that he informed Defendants that the factory should be closed in response, but that Defendants dismissed this idea asserting that all machines had been cleaned since the employee had last worked.

Loeb next alleged that he emailed Defendants stating that people who had contact with the employee carrying the virus had to be informed and told to self-quarantine. Further, he asserted that Defendants agreed to inform the floor manager that came in contact with the positively tested employee, but did not allow Loeb to inform the workers. Vantage agreed to call its lawyers and the health department to be advised on procedure. Loeb alleged that on the morning of March 19, 2020 he again insisted that workers be advised of their exposure to COVID-19. He further alleged that in response the employer stated “today is your last day.” Loeb argued that he was terminated in retaliation to his insistence that the company follow guidelines and executive orders to keep workers safe during a pandemic.

The Loeb Court stated that “the goal of CEPA is to prevent retaliation against those employees who object to employer conduct that they reasonable believe to be unlawful or indisputably dangerous to public health, safety or welfare”, citing Dzwonar v. McDevitt, 177 N.J. 451 (2003)(quoting Mehlman v. Mobil Oil Corp.)

As the Loeb court stated, a plaintiff who brings action pursuant to CEPA must, rely on a source or law or governing authority, as an expression of public policy, that sets a standard of conduct.

In Dzwonar v. McDevitt,  the court reasoned that “N.J.S.A. 34-19-3c does not require a plaintiff to show that a law, rule, regulation or clear mandate of public policy actually would be violated if all the facts he or she alleges are true. ... Further it is iterated, that the court must “make a threshold determination that there is a substantial nexus between the complained-of-conduct and a law or public policy identified by the court or plaintiff.”

The Loeb opinion stated that that Loeb, “ has pointed to specific guidelines set forth under numerous regulations, both before and after termination ... The orders further required compliance with CDC guidelines set forth by Plaintiff, as well as requiring employers to take direct actions to protect their employees from the spread of COVID-19 within the workplace, as mentioned by the Plaintiff.”

The Loeb court continued that, “plaintiff has made a clear showing of a claim of relief, pointing to a numerous amount of specific regulations within the CDC, OSHA, and Governor Murphy’s executive orders issued both before and after Plaintiff’s termination in response to COVID-19.

The Court found for the Plaintiff Loeb and against the employer Defendant Vantage and allowed Loeb’s claim to proceed, denying the Dismissal sought by the employer Vantage. The Court held that it was clear that Loeb had pointed to clear regulations on which he may state a claim, following the guidelines set forth within OSHA and  CEPA, and applying the law in the earlier Mehlman and Dzwonar cases.

DO NOT SIT ON YOUR RIGHTS!

If you were terminated after you complained about what you believed was your employer’s unlawful conduct, you should call me now for a free consultation. If you are thinking about resigning, you should contact an experienced employment law attorney before you do so. If you think your employer is forcing you out or illegally retaliating against you, or if you were terminated, you should call me now for a free consultation. I am an experienced, aggressive and compassionate whistleblower attorney.  I have successfully represented employees of public entities and private employers, who were harassed, retaliated against, or terminated and was successful in obtaining monetary compensation for them, including top-tier professionals. Do not sit on your rights, or you may lose the right to file your claim.

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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