Whistleblower employees who complain that their NJ employer is violating “public policy”, should be cautious when identifying such “public policy”. If they are subsequently terminated after they complain, they may have a hard time prevailing in a claim for wrongful termination under New Jersey’s whistleblower statute, Conscientious Employee Protection Act, CEPA, N.J.S.A. 34:19-1 et seq., under Section 3c(3), if they do not identify the bonafide distinct “public policy” which they reasonably believe is “incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”
“Public policy” is dissimilar to “criminal” or “fraudulent” activity, the latter two which are often apparent and commonly recognizable.
Under Section 3c of CEPA, it is illegal for an employer to take any retaliatory action against an employee because the employee:
(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, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Unlike other parts of the statute, which describe when an employee reasonably believes that her employer is violating the law, a statute, or committing fraud or in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care), a claims for retaliatory wrongful discharge brought Section 3c, “public policy” will not be considered a “public policy” under the purposes of this statute, unless it is articulated.
What do the courts consider to be "public policy" for purposes of a sustainable NJ whistleblower claim?
In a seminal case as to this exact issue, the NJ Supreme Court’s holding in a case filed by a medical doctor against a pharmaceutical company, in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980) is illustrative of what a court might consider to be public policy.
In Pierce v. Ortho Pharmaceutical Corp., the plaintiff, a medical doctor, worked for defendant, a drug manufacturer. Plaintiff opposed the development of a drug containing saccharin. In plaintiff's opinion, the saccharin's safety was medically debatable. The NJ Supreme Court noted that plaintiff did not allege that saccharin was dangerous, but that it was controversial. Also, plaintiff's research did not violate medical ethics or any statute. There was no clear mandate of public policy that prevented plaintiff from working on the drug, and the court found for the Defendant drug manufacturer because plaintiff's termination from her work was not for reasons that were contrary to a clear mandate of public policy. The Court described in its decision what they believed to be contrary to a clear mandate of public policy, so as to not facilitate frivolous lawsuits. The Court stated:
“The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions.
In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient.
Absent legislation, the judiciary must define the cause of action in case-by-case determinations.
An employer's right to discharge an employee at will carries a correlative duty not to discharge an employee who declines to perform an act that would require a violation of a clear mandate of public policy. However, unless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause.....
Employees will be secure in knowing that their jobs are safe if they exercise their rights in accordance with a clear mandate of public policy. On the other hand, employers will know that unless they act contrary to public policy, they may discharge employees at will for any reason. Finally, our holding protects the interest of the public in stability of employment and in the elimination of frivolous lawsuits. Courts allowing at will employees to sue for wrongful discharge have expressed concern that employees will file groundless suits.”
A Plaintiff’s belief that the employer or another employee is violating a public policy under N.J.S.A. 34:19-3c must demonstrate the reasonableness of her/his belief. The burden is on the plaintiff in litigation to prove that the belief is reasonable.
If you quit your job, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, 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, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you. I have successfully represented executives, managers, office workers, truck drivers, and obtained multiple-six figure 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 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 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 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 and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.