Whistleblowing on illegal acts of your employer can entail risks. Particularly when it is an upper level manager who does the whistleblowing, the employee may fear it is tantamount to disloyalty, resulting in career-building suicide, and be hesitant to whistleblow even though they feel they are ethically obligated to do so.
If the whistleblower first follows statutory mandated steps, an employee who objects to an employer’s illegal acts has statutory rights. Retaliation against a complaining New Jersey employee is prohibited under the Conscientious Employee Protection Act §§ 34:19-1 — 34:19-14, (CEPA). New Jersey upper level corporate managers can whistleblow on their company when they reasonably believe the company is engaging in illegal activities, violating legal regulations, or endangering public health and safety. However, under CEPA to protect their rights in the event of employer retaliation for their whistleblowing, they must take first statutory mandated steps, prior to the disclosure to public bodies.
Do not sit on your rights! Do not wait until you are terminated. If you are being subjected to unlawful retaliation because you objected to or reported that your employer is engaging in illegal activities, or endangering public health and safety, contact Hope A. Lang, Attorney at Law today for a free consultation. I have successfully represented upper level executives, managers and other workers who were subjected to unlawful retaliation. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients. Call today for a free consultation.
“Retaliatory action” under CEPA, means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment. Retaliation may begin in the form of unwarranted, poor Employee Performance Evaluations as a justification for subsequent illegal adverse employment action of discharge, suspension or demotion; transfers to distant undesirable geographic locations with loss of status, denial of promotions they had previously been offered, placed on a PIP for fraudulent reasons to establish a bogus reason to terminate; removal of full fringe benefits and seniority rights, and termination (see NJ Employment Attorney, I Was Put on a PIP: the Dangers of a PIP).
Whistleblowing is extensively characterized as providing a public service because it can protect the public and co-workers from harm and reduce illegal activities in the workplace. There is no one general whistleblower statue that applies in all situations. By way of example, see article on False Claims Act, NJ Whistleblower Attorney, Whistleblowers on Fraud Against Federal Government and Qui Tam.
STEPS TO MAINTAIN RIGHTS AS EMPLOYEE IF EMPLOYER RETALIATES
Written notice and allowing employer reasonable time to respond or correct the illegal acts is required in NJ. Under New Jersey’s whistleblower statute, Conscientious Employee Protection Act, § 34:19-1 et seq. Protection against retaliatory action requires that a whistlebower has a duty to report the illegal activities in writing to the employer to allow the employer reasonable time and opportunity to correct its illegal activities, prior to making a public disclosure (in the event the employer does not subsequently correct its illegal acts). It also sometimes happens that the facts of the alleged suspected illegal acts are not as the employee thought. Corporate whistleblowers in NJ should report what they believe to be the company’s illegal acts first internally to enable the company to have reasonable time for employer to correct the illegal activities. While there is no specific time frame mandated by law, the employee should allow reasonable time and opportunity for the employer to correct the illegal activities. If the employer fails to take appropriate action, the whistleblower can contact a public body.
WHEN WRITTEN NOTICE IS REQUIRED
§ 34:19-4 states that the protection against retaliatory action provided by this act pertaining to disclosure to a public body shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.
EXCEPTIONS: WHEN WRITTEN NOTICE IS NOT REQUIRED
§ 34:19-4 further states that disclosure is not required where the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature.
Who qualifies as a “supervisor” for the purpose of reporting under the statute?
“Supervisor” means any individual with an employer’s organization who has the authority to:
a. direct and control the work performance of the affected employee;
b. take corrective action regarding the violation of the law, rule or regulation of which the employee complains;
c. or who has been designated by the employer as the contact person on the annual notice it must display and distribute to employees regarding their protections and rights under CEPA.
PROACTIVE STEPS WHISTLEBLOWERS SHOULD TAKE TO MAINTAIN PROTECTED STATUS AGAINST RETALIATION
A company may not be aware of the illegal activities until the employee brings it to the company’s attention. However, many times a company already has knowledge of the illegal activities or even promotes illegalities to further its own business interests.
An executive may be reasonably certain that his company, the CEO or CFO or comptrollers etc. are already aware of the illegal activities. When NJ upper level executives reasonably suspect their company already has knowledge of the law breaking, there are proactive steps they should take for proofs in order to maintain their protected status against company retaliation. It is important that the executive take proactive steps prior to the whistleblowing in order to have proof that he was reasonably certain reasonably certain that the activity, policy or practice was known to one or more supervisors of the employer, or that he gave such proper notice, to help maintain his protected status against retaliation.
When NJ employees suspect their company is breaking the law or that the company has knowledge of the illegal activities, they should:
1. Document the suspected illegal activities, and any and all acts of subsequent retaliation, by
2. Documenting that the company had knowledge of such illegalities by thoroughly drafting and keeping at home (not using or storing on a work computer, work email, or cell phone that has a mixed business and personal use) a personal log of witnessed conversations regarding violations whether conversations be in person or on an electronic device;
3. Printing and maintaining copies of relevant emails, letters, texts, etc.; and
4. When relevant - maintaining copies of items such as shipping receipts, invoices, inventory turnovers, tax returns, illegal instructions to staff including instructions to HR, industry publications, documents that contain environmental standards or health or medical protocols, proper handling of chemicals, etc.
5. Report the concerns in writing through proper internal channels, such as to your supervisor.
6. If there is retaliation: Draft and maintain documentation of all acts of retaliation per 1- 5 above as evidence of retaliation.
You may read details on what comprises whistleblowing under the Conscientious Employee Protection Act (CEPA) by clicking on New Jersey Whistleblower Laws Attorney.
Note: What’s not protected conduct under CEPA
Some examples of complaining conduct that is generally not considered protected from whistleblower retaliation under CEPA, is the reporting of or objecting to:
Concerns about unwise management decisions, i.e., that employee believes decisions to be “running the company into the ground’, but which and of themselves are not illegal.
Private disagreement. In Demarzo v. City of Wildwood, the Appellate court rejected as specious, the plaintiff's argument he could advance a CEPA claim by asserting he was "singled out" for doing what everyone else was doing. The Court reaffirmed "the limiting principle enunciated in Mehlman[ v. Mobil Oil Corp., that the complained of activity must have public ramifications, and that the dispute between employer and employee must be more than a private disagreement.”
Breaches of company policy.
Contract disputes that do not rise to the level of illegal activity.
Personal grievances against other employees.
Disputes not related to illegal activities.
What You Can Do
If you are an employee who is experiencing illegal retaliation for whistleblowing, contact us today for a free consultation. I have represented numerous employees who were retaliated against, and I was successful in recovering multiple six-figure financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, 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 resigning, 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 accept Whistleblower 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.