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Monday, April 25, 2022

NJ Whistleblower Attorney, When Employee Whistleblows Employer’s Illegal Acts but Acts Are Not Illegal

New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., (CEPA), is the strongest whistleblower employee statute in the country. CEPA is a civil rights statute. The NJ Supreme Court has stated that, its purpose is to discourage public and private sector employers from engaging in illegal or unethical workplace activities and to protect and encourage employees to report illegal or unethical workplace activities.

An employee may honestly and reasonably believe the public or private employer is committing  illegal activities when the acts are not in fact illegal. If the employee then reports or complains to a supervisor about an alleged “illegality”, and the employer subsequently terminates the employee or otherwise commits an adverse act against the employee in retaliation for the employee’s reporting such an alleged “illegality”, could that be illegal retaliation?

If Employee Has Reasonable Belief of Employer’s Illegal Acts, But The Acts Are Not Illegal, Is That Fatal to a Claim?

Some workers may “whistleblow” to supervisors regarding acts which they believe are in violation of law, but which acts are in fact are legal. The question then arises, that if the employer subsequently retaliates against such employee by a sufficient adverse act such as a demotion or having hours cut etc., can the employee sustain a whistleblower claim under CEPA, if the alleged “illegal” act turns out to be legal?

Sufficiency of the “Reasonableness” Is Essential to Sustain a Claim

In New Jersey, the answer to this question depends on the “reasonableness” of the employee’s belief, and that it was not just the employee’s personal dislike toward the employer or an unreasonable belief. Under the New Jersey Conscientious Protection Act, (CEPA) N.J.S.A. 34:19-1, et seq., it is not necessary that the employer’s act was in fact contrary to law if the employee’s belief was a reasonable belief that it was illegal. The term "reasonably believes" in the CEPA statute is not intended to spawn litigation concerning the most trivial or benign employee complaints.

It is also not essential that the employee legally cite to the actual statute or regulation, although it may make it a stronger claim if the employee did so. In 2018, the NJ Supreme Court in Chiofalo v. State, 238 N.J. 527 (2018) held that CEPA plaintiffs do not have to cite to an exact law, regulation or policy that they reasonably believe their employer violated. However, the Court cautioned that it is best for plaintiffs’ cases in CEPA actions to identify the statutory or other basis for claiming objected-to behavior is criminal or fraudulent. I have represented numerous employees in whistleblower claims and was successful in recovering multiple six figure monetary compensation for them, including blue-collar workers who did not provide the legal citations to the exact statute or regulation section when they made their complaint to their supervisor.

According to the NJ Supreme Court in Mehlman v. Mobil Oil Company, all that is required to satisfy the reasonableness element is that the plaintiff show he "reasonably believes" that his employer's conduct was violating the law. Even if the complained-of conduct by the employer is found not to be illegal or improper, a plaintiff may assert a CEPA claim if there is an "objectively reasonable" basis for believing that the conduct was illegal. Mehlman v. Mobil Oil Company, 153 N.J. 163, 194-195 (1998).

The  Legislature enacted CEPA to "protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431, 650 A.2d 958, 971 (1994). In furtherance of that goal, this stature is liberally and broadly interpreted. CEPA provides in relevant part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

c. Objects to, or refuses to participate in any activity, policy or practice which the employee REASONABLY believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law …;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

[N.J.S.A. 34:19-3 (c)] Emphasis added.

The NJ Supreme Court in Dzwonar v. McDevitt, 177 N.J. 451 ( 2003) described a basic legal framework for a cause of action pursuant to N.J.S.A. 34:19-3c to be that a plaintiff must demonstrate that: a) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; b) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (c) an adverse employment action was taken against him or her; and d) a causal connection exists between the whistle-blowing activity and the adverse employment action.

In Dzwonar, at issue was whether the plaintiff, who argued that she objected to actions by defendants that she reasonably believed violated both the law and public policy, satisfies the reasonableness of first prong of that test.

Citing to a 2002 decision, Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522, 792 A.2d 494, 497-98, the Dzwonar NJ Supreme Court stated that a plaintiff who brings a claim pursuant to N.J.S.A. 34:19-3c need not show that his or her employer or another employee actually violated the law or a clear mandate of public policy. Instead the plaintiff must demonstrate the reasonableness of her/his belief.

By way of example, the mere fact that an employee may personally find the employer’s actions to be obnoxious, unkind, rude, repugnant, devious, malicious or harsh is not sufficient standing alone. While it is not necessary that the employee must articulate with particularity the actual statute he/she believes is being violated, the belief must be reasonable.

An abrupt change of business practices standing alone would generally qualify as the “Business Judgment Rule”, and it would not necessarily qualify that it’s an reasonable belief that it’s illegal  even when the employee believes that the employer’s new procedures of doing business demonstrates extremely bad business judgment. However, if the employee learns that only persons of a certain race, color or sex are being let go, and complains about that, depending on the constellation of facts, it is possible that a belief a law is being violated may be reasonable.

I have successfully represented executives,  managers, teachers, truck drivers and other blue collar workers in whistleblower claims and was successful in recovering six figure settlement moneys for them. If you believe you are being targeted by your employer in retaliation for whistleblowing, you should contact this office immediately for a free consultation.

If you quit your job, you may lose right to prevail in a lawsuit.

In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were whistleblower employees and was successful in recovering multiple six figure settlement moneys for them. If you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in whistleblower law.

If You Complained about What You Reasonably Believed to Be Your Employer’s Illegal Practices and Your Employer Retaliated               

Do not sit on your rights, or you may lose the right to file your claim. If you think you have been retaliated against for complaining about or reporting to your employer what you believe are your employer’s illegal practices, it is essential for you to contact an experienced, competent and successful 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 and compassionate employment attorney who will be aggressive about enforcing your rights. I am successful in bringing whistleblower lawsuits against governmental entities and private employers 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.

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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