Chapter 105 of the Laws of 1986, the New Jersey Statute otherwise known as Conscientious Employee Protection Act (CEPA), was enacted in the wake of the New Jersey Supreme Court opinion in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 (1980), to cement the State’s commitment to protect and encourage employees to report illegal or unethical workplace activities. Under CEPA, employees are protected from employer retaliation for an employee's protected activities, which are identified in three subsections.
Employees who complain to their employer that they do not agree with how the employer runs the business, makes business decisions, or when an employee expresses their belief to the employer that the employer’s business policies and procedures are actually hurting the business, and is thereafter terminated by the employer after making such statements, is generally not the kind of activity that is considered “protected activity” under the statute. Complaints that the employee believes the employer is not employing the best business judgment and has policies that actually are harming the business, but not alleging that they are illegal or fraudulent, or otherwise contrary to a clear mandate of public policy, would be considered an “internal business dispute”, or “workplace dispute”.
CEPA ensures that employees are protected from retaliation and employers are deterred from activities that are illegal or fraudulent, or otherwise contrary to a clear mandate of public policy. D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007). CEPA does not intend to protect employees who merely complain about the employer’s “running of the business” activities and policies, unless the complaint is that the employee believes the activities that are illegal or fraudulent, or otherwise contrary to a clear mandate of public policy. See NJ Whistleblower Attorney, Whistleblower Employees and Negative Performance Evaluations. Unscrupulous employers who want to terminate a whistleblower employee may give bogus Employee Performance Evaluations, where they falsely downgrade the employee’s work to have an excuse to fire them. If this is happening to you, you should contact us today for a free consultation.
Don’t sit on your rights. If you are experiencing harassment in the workplace or were fired for complaining about the employer’s illegal acts, you should contact this office immediately for a free consultation. New Jersey Whistleblower Laws Attorney. I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were terminated for complaining about the employer’s illegal acts. If you are experiencing such retaliation, you should contact this office immediately at 201 599-9600 for a free consultation. I accept cases from all over NJ and have locations in Southern, Central and Northern NJ to meet with clients.
Courts will weed out and dismiss CEPA complaints which allege most trivial or benign employee complaints that do not comport with Section 3 of CEPA’s critical substantive provisions of essential prohibition of employer retaliation for an employee's protected activities.
Employment/Civil Rights Law. The critical substantive provisions of the Conscientious Employee Protection Act (CEPA), N.J.S.A. §§ 34:19-1 to 34:19-14, are contained in N.J.S.A. § 34:19-3. Section 3 sets forth the statute's essential prohibition of employer retaliation for an employee's protected activities, which are identified in three subsections:
§ 34:19-3. Retaliatory action 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;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, 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, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; 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.
Employees should complain in writing when possible, retaining a copy for themselves (so that they have evidence they complained in case the employer disputes it and retaliates) and cite to the actual statute or regulation or public policy that they believe the employer is violating. While not essential that the employee legally cite to the actual statute or regulation, it may make it a stronger claim when the employee does 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 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. See NJ Whistleblowing Attorney, When Top-Tier Executives Experience Retaliation for Whistleblowing.
When Written Notice is Required
§ 34:19-4. Written notice required
CEPA protection against retaliatory action 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.
Disclosure shall not be 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.
Plaintiff Bears the Burden
As stated by the NJ Supreme Court in Chiofalo v. State, 238 N.J. 527 (2018) plaintiff bears the burden of demonstrating that:
(1) 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;
(2) he or she performed a "whistleblowing" activity described in N.J.S.A. 34:19-3(c);
3) an adverse employment action was taken against him or her; and
(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.
You may read about the Federal False Claims Act in December 18, 2024, NJ Whistleblower Attorney, Employees and the False Claims Act.
Note: This article is for broad general information purposes only, and it is not to be construed as giving legal advice in any specific case, nor should it be relied upon in filing any type of claim, whistleblower or otherwise. Successful whistleblower claims are among the most complex of legal claims. If you think you may have any type of whistleblower claim, you should contact this office for a free consultation.
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. I accept cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients. Call now for a free consultation.
WHAT YOU CAN DO
If your employer retaliated against you for whistleblowing, you should contact this law firm today for a free consultation. I am an experienced, aggressive and compassionate employment attorney who will be aggressive about enforcing your rights. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients.
Contact Hope A. Lang, Attorney at Law today for a free consultation.
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.