The Legislature enacted CEPA, New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., 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. Part 1 of this topic may be read here.
NJ Courts Held Sufficiency of the Employee’s “Reasonable Belief” That Employer Is Engaging in Illegal Workplace Activities Is Essential to Maintain CEPA Claim
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., the Dzwonar 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 an example only, if an employee based on that employee’s experience has a reasonable belief that the employer is defrauding shareholders and reports that to a supervisor, but in fact the employer is not defrauding the shareholders, if given the totality of the circumstances, the employee’s belief was a reasonable belief that the employer is defrauding the shareholders, it may satisfy the reasonableness of first prong of that test.
As the Court stated in Chiofalo v. State, 238 N.J. 527 (2018) , "Criminal" or "fraudulent" activity is often apparent and commonly recognizable, which distinguishes (c)(2) claims from those brought under (c)(1) and (3). But the parties and the court need to have a common understanding of the legal principle that the plaintiff reasonably believed was being violated.
It is not absolutely essential that the employee legally cite to the actual statute or regulation, but 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 Chiofalo 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.
Section a) and c) of N.J.S.A. 34:19-3 give further clarity as to the type of retaliatory action that is prohibited: An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that 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, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or
(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
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.
The Term "Reasonably Believes" in Sections 3(a)(1), 3(a)(2), 3(c) and 3(c)(2) Is Not Intended to Spawn Litigation Concerning the Most Trivial or Benign Employee Complaints.
The NJ Supreme Court in Estate of Roach v. TRW, Inc., 164 N.J. 598, (2000) stated that CEPA affords protection to employees if they reasonably believe that the activity complained of is fraudulent or criminal even when the activity does not rise to the level of an actual crime.
The Roach Court held that, “With regard to section 3c.(1), CEPA does not require that the activity complained of (in this case, the alleged violations of TRW's code of conduct) be an actual violation of a law or regulation, only that the employee "reasonably believes" that to be the case. The same holds true in respect of section 3c.(2): the statute affords protection to employees if they reasonably believe that the activity complained of is "fraudulent or criminal" even when the activity does not rise to the level of an actual crime.” .....Mehlman, 153 N.J. 163 (1998) at 193-94 ... "The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to . . . conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.”
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If You Complained about What You Reasonably Believed to Be Your Employer’s Illegal Practices and Your Employer Retaliated
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