RETALIATION CLAIMS

An employee may not be discharged for a reason that is contrary to the public policy of the state of New Jersey. Specifically, employees are protected from retaliation for the following protected activities:

  • Reporting workplace safety violations

  • Refusing to commit an illegal act

  • Reporting illegal activity to an outside authority

An employee who reports wrongdoing internally to a supervisor is not protected under the public policy exception because the internal report does not bring the wrongdoing to the attention of a public official. However, in certain instances, an internal report is protected under the general whistleblower protection statute, the Conscientious Employee Protection Act.

Under the Conscientious Employee Protection Act (CEPA) , an employee may not be discharged (or discriminated against) in retaliation for the following activities:

  • Disclosing, or threatening to disclose, an activity, policy, or practice of the employer (or another employer) that the employee reasonably believes is illegal, fraudulent, or criminal. The disclosure may be made to either a supervisor or a public body (legislative body, judicial officer, grand jury, administrative agency, law enforcement agency, department in the executive branch, or any subdivision; federal, state, or local). However, there is an important caveat for employees who disclose information to a public body (see below).

  • Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into an employer's violation of law.

  • Objecting to-or refusing to participate in-an activity, policy, or practice that the employee reasonably believes is illegal, fraudulent, criminal, or incompatible with a clear mandate of public policy. The clear mandate of public policy must concern the protection of the environment or the public health, safety, or welfare.

However, there is an important caveat for employees who disclose information to a public body and seek protection under CEPA. An employee must first inform a supervisor of the alleged violation and then allow the employer a reasonable opportunity to correct the violation. This disclosure to a supervisor must be made in writing. An exception to this requirement is made in two instances: (1) where the employee is reasonably certain that a supervisor is aware of the violation, and (2) where the employee reasonably fears physical harm in retaliation for the disclosure and the situation is emergency in nature. N.J. Stat. § 34:19-4.

Note that CEPA only requires an employee's "reasonable belief" that the employer was violating the law. The employee's suspicion that the employer is violating the law does not need to turn out to be true-an employee is still protected from retaliation if it turns out that the employer was not violating the law, so long as the employee's suspicion was reasonable.

Additional protections for licensed or certified health care professionals are also embedded in CEPA. In addition to the general protections for employees, licensed or certified health care professionals may not be discharged in retaliation for:

  • Disclosing an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care (as defined by statute, rule, regulation, or professional code of ethics)

  • Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into the quality of patient care

  • Objecting to an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care 

Civil Service: An employee may not be retaliated against for disclosing a violation of law, governmental mismanagement, or abuse of authority. N.J. Stat § 11A:2-24.

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a proceeding, or assisting in a proceeding concerning New Jersey's laws against employment discrimination. N.J. Stat. § 10:5-12(d).

Family Leave Act: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice that violates the New Jersey Family Leave Act. Nor may an employee be discharged (or discriminated against) in retaliation for filing a charge, instituting a proceeding, providing information in connection with a proceeding, or testifying in a proceeding under the Family Leave Act. The Family Leave Act allows employees to take time off from work to care for a new-born child or to attend to a serious health condition of a family member. N.J. Stat. § 34:11B-9.

Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising a right under the Worker and Community Right to Know Act, a law that regulates the use of hazardous substances N.J. Stat. § 34:5A-17.

Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning minimum wage violations. Also, an employee may not be discharged (or discriminated against) for serving on a wage board. An employer may fined up to $1,000 per violation. N.J. Stat. § 34:11-56a24.

Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising rights concerning worker health and safety. N.J. Stat. § 34:6A-45.

Schools: An employee of a school may not be retaliated against for reporting harassment or bullying. N.J. Stat. § 18A:37-16.

Ski Lift Safety: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning ski lift safety. N.J. Stat. § 34:4A-13.

Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Jersey's wage discrimination laws. Under these laws, discrimination in wages on the basis of sex is prohibited. N.J. Stat. § 34:11-56.6.

Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for claiming (or attempting to claim) workers' compensation benefits, or testifying in a workers' compensation proceeding. An employer may be fined up to $1,000 and imprisoned for up to 60 days for violations of this statute. N.J. Stat. § 34:15-39.1.

DOUGLASS 

EMPLOYMENT LAW GROUP

Douglass Law Group

207 Shore Road, Suite 2.

Somers Point, NJ 08244

T:201-422-5980

T: 609-788-3595

F:609-788-3599

admin@myrightslawyers.com

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