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WHISTLEBLOWER LAW THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT

The New Jersey Conscientious Protection Act (CEPA) was enacted to protect employees from retaliation after they disclose, refuse to participate in or object to (or “blow the whistle”) their employer’s participation in unlawful or harmful activity. Under CEPA, an employee is protected if the employee either discloses or objects to an activity of the employer which the employee reasonably believes is in violation of law, regulation, rule or incompatible with a clear mandate of public policy.[1] Also, CEPA prohibits an employer from taking retaliatory action against an employee who objects or refuses to participate in “any activity, policy or practice which the employee reasonably believes … is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”[2]

“Retaliatory action” is defined as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.[3]

As to a health care professionals, CEPA protects an employee from retaliation for having disclosed, refused to participate in or objected to any practice, procedure, action or failure to act of an employer that is a health care provider which violates any law or any rule, regulation or declaratory ruling adopted pursuant to law, or any professional code of ethics.[4]  Improper quality of patient care has been construed broadly in some cases.  A plaintiff-nurse brought a CEPA claim when she was discharged for refusing to prepare a fraudulent disciplinary write-up on a subordinate nurse. The subordinate nurse prepared a write-up for a nurse’s aide who left patients alone, naked and soiled while smoking cigarettes with a supervisor. The New Jersey Appellate Division concluded that the plaintiff-nurse there had an objectively reasonable belief that the filing of charges against the subordinate nurse was ‘violative of the proper quality of patient care’ because punishing the subordinate nurse could not be “consistent with good patient care.”[5]  The plaintiff-nurse was not required to identify a specific law, rule, regulation, declaratory ruling or professional code of ethics.

CEPA protects employees “who, believing that the public interest overrides the interest of the employer he or she serves, publicly ‘blows the whistle’ if the employer is involved in corrupt, illegal, fraudulent, or harmful activity.”[6]  The overarching goal of the CEPA legislation is to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”[7]

Similar to New Jersey’s Law Against Discrimination (LAD), CEPA advances important public policies of overcoming the victimization of employees and protecting those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers.[8]   In order to establish a case under CEPA the plaintiff must show that it is more likely than not that: (1) she performed a whistle-blowing activity described in the statute; (2) she reasonably believed that his employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or clear mandate of public policy; (3) an adverse employment action was taken against her; and (4) a causal connection exists between her whistle-blowing activity and the adverse employment action.[9]  If a plaintiff is able to establish these elements, then the defendants must come forward and advance a legitimate, non-retaliatory reason for the adverse conduct against the employee.[10]  If such reasons are proffered, plaintiff must then raise a genuine issue of material fact that the employer’s proffered explanation is pretextual, that is, not the real reason for the adverse action.[11]

CEPA does not require any magic words in communicating an employee’s reasonable belief of illegal activity.[12]   Moreover, “[i]t is not necessary for CEPA plaintiffs to show that a law, rule, regulation, or clear mandate of public policy would, in fact be violated if all that the employee discloses were true.”[13]  The object of CEPA is not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct they reasonably believe to be unlawful or indisputably dangerous to the public safety or welfare.[14]

CEPA allows an aggrieved employee various avenues for redress including reinstatement, lost wages, punitive damages, reasonable costs, and attorney’s fees.[15] A person subject to unlawful retaliation is afforded the remedy of punitive damages.[16] Additionally, for a claim brought under CEPA, the prevailing party may be awarded reasonable counsel fees.  However, fees may not be assessed against a complainant unless it is determined that the case was brought in “bad faith.”

If you are a victim of retaliation for having disclosed, refused to participate in, or objected to your employer regarding conduct you reasonably believe violates the law, regulation or a clear mandate of public policy, do not hesitate to contact the attorneys at Mashel Law, L.L.C. Mashel Law located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.

 


[1] N.J.S.A., 34:19-1 to -8.

[2] N.J.S.A. 34:19-3(c)(3).

[3] N.J.S.A. 34:19-2(e)

[4] N.J.S.A. 34:19-2(f)

[5] Gerard v. Camden County Health Services Center, 348 N.J. Super. 516,  524 (App. Div. 2002); see also Espardinez v. Atlantic Health Systems, 2009 N.J. Super. Unpub. LEXIS 3237 at **1, 10. (finding that Plaintiff properly claimed that employer’s conduct constituted “improper quality of patient care” where plaintiff-nurse expressed concerns that certain conduct did not follow a “best practice standard”)

[6] Abbamont v. Piscataway Twp. Bd. of Ed. 138 N.J. 405, 417-418 (1994), citingRalph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility (Ralph Nader et al., eds., 1972).

[7]  Id. at 431; see also Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003).

[8] Abbamont, supra, 138 N.J. at 418.

[9] Dzwonar, supra., 177 N.J. at 462; Hernandez v. Montville Twp. Bd. of Ed., 354N.J. Super. 467, 473 (App. Div. 2002); see also Model Civil Jury Charge 2.32.

[10] Zappasodi v. State, Dept. of Corrections, 335 N.J. Super. 83, 89 (App. Div. 2000).

[11] Id.

[12] Beasley v. Passaic County, 377 N.J. Super. 585, 605 (App. Div. 2005).

[13] Id. at 605-06.

[14] Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).

[15] N.J.S.A. 34:19-5

[16] See N.J.S.A., 34:19-1 et seq.