Blowing the Whistle in the Workplace

In recent years, “whistleblower” statutes have grown in national prominence. New Jersey’s whistleblower statute, called the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., is a comprehensive statutory enactment. It applies to both private and public employment situations. The statute makes it unlawful for employers to take adverse employment action, including termination, against employees who disclose, object to, or refuse to participate in certain actions that the employee reasonably believes are either illegal or in violation of a public policy.The concept of an employee’s “reasonable belief” is important when evaluating a CEPA claim. In general, an employee who erroneously accuses his or her employer of wrongdoing under CEPA is protected, so long as the belief of wrongdoing is deemed “reasonable.” “Reasonableness” is generally interpreted broadly by the Courts. However, it is clear that CEPA will not provide immunity to an employee for “assaultive or destructive conduct, however well intended.”

Another important concept in evaluating a CEPA claim is whether the employee’s complaint serves a “public purpose.” Although, the statute itself does not limit its protections to complaints serving a public purpose, subsequent cases have created conflicting Court opinions on this issue, with some tribunals requiring that Plaintiffs show a potential public harm.

Examples of the types of scenarios protected under CEPA include: employee disclosures concerning an employer’s violation of a law; an employee’s testimony given during an investigation of an employer; or an employee’s objection to participate in an activity that the employee reasonably believes is criminal. Additional situations, not discussed in this article, can also provide an employee with CEPA protection.

Normally, to invoke CEPA protection, an employee must advise a supervisor, in writing, of the employee’s intention to report alleged wrongdoing to a public body, except in emergency situations, such as when the employee reasonably fears physical harm. By contrast, employers are required to post notices of employee’s rights and obligations under CEPA. Employers must also designate a person to receive internal employee complaints.

If an employee is subjected to retaliatory action by the employer for making a complaint, a employee may file a civil lawsuit under CEPA against the employer. The employee’s suit must be commenced within one year following the retaliatory action. A successful employee can recover a wide assortment of damages, such as reinstatement, compensation for lost wages, and punitive damages.

Employers are well advised to take heed of their responsibilities under the CEPA statute to minimize the risks of an employee’s suit. By contrast, a concerned employee can take comfort in the protections afforded by the CEPA statute, in the event that employer misconduct is discovered.

James M. Maggio is an associate in our litigation department, actively practicing in the area of employment law.

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