When high-end professionals are whistleblowers at publicly traded mega-companies and other companies, the employer might have anticipated such a possibility and have documentation demonstrating some level of dissatisfaction with that employee’s work. Some savvy employers might even have a practice being sufficiently sagacious to have written a notation in many upper-level employees’ files documenting a less than 100% satisfaction with the employee’s judgment or performance, whether it be justified or not. This practice can be business practice pre-emptive defense in case the employee is terminated and files a lawsuit for wrongful termination.
In New Jersey, an employee bringing a case under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., “CEPA”, does not have to prove the employer’s decision to terminate him was based on the whistleblowing activity being the sole and only factor in the termination decision.
The protected, whistleblowing activity must be a determinative or substantial, motivating factor in employer’s decision to terminate the employment, but not the sole factor.
Employers will not automatically escape liability by having something in an employee’s file that expresses some level of dissatisfaction in the employee’s work.
A plaintiff's ultimate burden of proof, in a claim under 34:19-1 et seq., is to prove by a preponderance of the evidence that his protected, whistleblowing activity was a determinative or substantial, motivating factor in the employer’s decision to terminate his employment, that it made a difference. The plaintiff does not have to prove that his whistleblowing activity was the only factor in the decision to fire him.
In a case brought against a casino, Donofry v Autotote Systems, Inc., the terminated employee, plaintiff, reported violations of casino regulations and the employer subsequently fired him. Defendant employer contended that that plaintiff deserved to be fired for his violation of the Casino Control Act's licensing rules, and that the employee knew it. His claim is legally characterized as a “pretext” case in which he argued the employer’s given reason for his termination was bogus and a “pretext” for illegal retaliation.
The appellate court held the employee’s role in the illegal activity did not preclude his recovery under the Conscientious Employees' Protection Act, N.J. Stat. Ann. § 34:19-1 et seq. It found the employer's offer of affirmative, credible evidence of a lawful reason for the termination was not conclusive.
The terminated casino worker had to show retaliatory discrimination was more likely than not a determinative or substantial, motivating factor in his termination. He did not have to prove retaliation was the sole consideration, only that it made a difference in the decision. The trial court was not required to accept the employer's explanation for failing to discipline two other employees, including the supervisor, who were at least as culpable as the employee. The trial court's conclusion that whistleblowing played a significant part in the decision to fire the employee meant he would not have been fired but for his protected reporting of illegal activity.
The appellate decision, Donofry v Autotote Systems, Inc., 350 N.J. Super. 276, 299 (App. Div. 2001), upheld the trial court findings that the employee had a valid CEPA claim, and the court stated:
“The judge recognized that sacrificing an employee in an effort to show penitence for the violation would not itself be actionable, but went on to conclude that plaintiff's whistleblowing activity "more probably than not contributed to the decision to terminate him." Key to our conclusion is that the judge cited the disparate treatment of "the two others who equally share the blame for the unlicensed workers" and then concluded "[t]here had to be some element of retribution in the decision to fire only plaintiff. . . ." With those explanations, we understand the trial judge's final conclusion that whistleblowing "played a significant part in the decision to fire him" to mean that plaintiff would not have been the one of the three employees to be sacrificed "but for" his protected activity.
We find no reason to reverse the judge's determination that defendant violated CEPA when it fired plaintiff.”
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were whistleblower employees. I have successfully represented executives, managers, office workers, truck drivers, and obtained multiple-six figure moneys for them. If you have been terminated or 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 for a free consultation to discuss your options in the safest way for you.
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 for a free consultation. 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.