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THE NEW JERSEY APPELLATE DIVISION SAYS LATERAL TRANSFER CAN BE AN ADVERSE EMPLOYMENT ACTION UNDER STATE’S WHISTLEBLOWER LAW

The issue of whether an employee has suffered a requisite “adverse employment action” under our state’s whistleblower law when transferred out of his longstanding job into another after he blows the whistle on his employer’s violations of law or public policy, was recently addressed by the New Jersey Appellate Division in Jeffrey Scozzafava v. Somerset County Prosecutor’s Office, 2018 N.J. Super. LEXIS 1125, (App. Div. decided May 14, 2018). There, the appellate court significantly expanded employee protections within the meaning of New Jersey’s Conscientious Employee Protection Act (CEPA) by providing clarity on the issue of lateral transfers.
In Scozzafava, the Appellate Division reversed a trial court’s decision dismissing Detective Jeffrey Scozzafava’s complaint against his employer. The Court held that Detective Scozzafava’s transfer from his long-time service in the Somerset County Prosecutor’s Office’s forensic unit to the Office’s fugitive squad, constituted an adverse employment action by the employer stemming from Scozzafava’s whistle-blowing conduct of filing complaints against the forensic unit and supervisor for improper and deficient evidence collection and casework.

To establish a New Jersey whistleblower claim, a plaintiff must satisfy four elements:

(1) that he . . . reasonably believed that his . . . employer’s conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he . . . performed whistle-blowing activity described in N.J.S.A. 34:19-3[(a), (c)(1), or (c)(2); (3) an adverse employment action was taken against him . . .; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 127 (App. Div. 2002).]

An adverse employment action exists when there has been a, “demotion, suspension, discharge, and other actions that go against the terms and conditions of employment,” N.J.S.A. 34:19-2(e) to -3. The terms and conditions of employment are defined as, “matters that go to the essence of the employment relationship and can include the length of the workday; increase or decrease in salaries, hours and benefits; physical arrangements and facilities; and promotional procedures.” Beasley v. Passaic City., 377 N.J. Super. 585, 608 (App. Div. 2004) (citations omitted) (quoting Twp. of W. Windsor v. Pub. Emp’t Rel. Comm’n., 78 N.J. 98, 110 (1978)).

The trial court below in dismissing Scozzafava’s case, found that his transfer was not retaliation, but instead, a lateral transfer in which Scozzafava maintained the same rank, pay, and benefits that he enjoyed during his nine years as a member of the Office’s forensic unit. The trial court rejected arguments that Scozzafava’s professional reputation was damaged by the transfer or that his pay was diminished by the deprivation of overtime compensation. The trial court found the deprivation of overtime compensation argument to be “too speculative to be relied upon in determining the wholesale loss in compensation.”

The Appellate Division in reversing the trial court the lateral transfer was an adverse employment action based on Scozzafava’s expertise and proven reputation in the forensics field, his membership in multiple professional associations, his devotion of thousands of hours to the work as a student and an instructor, and his intent to continue to develop and utilize these expert skills after retirement, the transfer was “objectively demeaning.” The appellate court further pointed with disfavor to the justification offered by Scozzafava’s supervisor for the transfer, “everybody does time in the penalty box.” Also, significant, no one in Scozzafava’s nine years of employment at the Somerset County Prosecutor’s Office had ever been transferred from the forensic unit. The Court further found that the overtime deprivation resulted in thousands of dollars in lost wages.

This decision in Scozzafava is a significant development for employees’ protections under CEPA because it marks the first time the courts have recognized that a lateral job transfer can constitute an adverse employment action in the context of a whistleblower retaliation claim. A CEPA case can be made even where there is no termination, demotion, or decrease in hours, base pay, or benefits. In Scozzafava, the Court focused on the reputation and expertise of Scozzafava and the demeaning nature of his transfer as sufficient to establish an adverse employment action. This decision may be expected to have noteworthy impact on whistleblower claims going forward.

If you believe you have been or are a victim of retaliation by an employer for whistleblowing an employer’s conduct, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.