Typically, persons think of employee whistleblower claims in terms of their employer or supervisor violating a law. Sometimes, however, an employee may reasonably believe that a co-worker is breaking the law.
The NJ Supreme Court held that minor infractions that violate company policies are not "unlawful conduct” as contemplated by New Jersey’s employee whistleblower statute, the Conscientious Employee Protection Act , N.J.S.A. 34:19-1 et seq., CEPA. Estate of Roach v. TRW, Inc., 164 N.J. 598, (2000).
NJ courts have held that in order to succeed on a CEPA claim based on alleged illegal acts of another co-worker on the job, a plaintiff had to reasonably believe that the complained-of activity by the co-worker was illegal and/or was fraudulent. A Plaintiff's CEPA claim may fail because the employee did not actually complain that the co-worker engaged in illegal or fraudulent conduct of any kind.
The NJ Supreme Court, in Estate of Roach v. TRW, Inc., 164 N.J. 598, (2000) discussed a claim based on alleged acts of a co-employee. The Court stated that under the Conscientious Employee Protection Act, N.J.S.A. §§ 34:19-1 to 34:19-14, a claim based on fraud, N.J.S.A. §34:19-3(a)(2), (c)(2), can rest on allegations about the activities of a co-employee. However, the court’s focus is on whether the employee making the complaint reasonably believed that the activity was occurring and that it amounted to fraud or illegal activity.
Courts have held that the issue is not whether in fact other employees were engaged in the activity complained of or whether the activity met the legal definition of fraud or violating government regulations or statutes. Instead, the question is whether the complaining employee had a reasonable belief that the activity of another employee was illegal and complained about it for that reason.
The NJ Supreme Court in Battaglia v. United Parcel Service, Inc., 214 N.J. 518 (2013) stated that CEPA does not protect employees whose complaints are directed to minor or trivial matters or certain violations of company policy. Courts have described examples of trivial complaints are if an employee were to complain about a co-employee who takes an extended lunch break or makes a personal telephone call to a spouse or friend, the court would be hard pressed to conclude that the complaining employee could have "reasonably believed" that such minor infractions represented unlawful conduct as contemplated by CEPA.
Courts will look to whether there is sufficiency of the complaining employee’s factual evidence as to whether the acts complained of, could support a finding that the employee's belief that the co-worker was engaged in illegal acts, was a reasonable belief that the co-worker was engaged in illegal act
The NJ Supreme Court in Battaglia cautioned, the court must be alert to the sufficiency of the factual evidence and to whether the acts complained of could support the finding that the complaining employee's belief was a reasonable one. That is, the statute does not protect employees whose complaints are focused on minor or trivial matters.
Battaglia stated: As we have explained:
“If an employee were to complain about a co-employee who takes an extended lunch break or makes a personal telephone call to a spouse or friend, we would be hard pressed to conclude that the complaining employee could have "reasonably believed" that such minor infractions represented unlawful conduct as contemplated by CEPA. CEPA is intended to protect those employees whose disclosures fall sensibly within the statute; it is not intended to spawn litigation concerning the most trivial or benign employee complaints........to the extent that plaintiff simply complained about other employees who were drinking at lunch or taking long lunch breaks, it would not rise to the level of activity protected under CEPA. See Roach, supra, 164 N.J. at 613-14, (commenting that complaints about extended lunch breaks are not protected). Similarly, as in Roach, we do not suggest that, even if proven, a complaint about a minor violation of a company's internal policy on the use of company credit cards would be cognizable. Id. at 613, 754 A.2d 544 (noting that "minor infractions" that violate company policies are not "unlawful conduct as contemplated by CEPA"). Battaglia at 557-558.
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