The law in New Jersey is clear that actual or constructive discharge is not a required element for recovery of economic losses due to employer’s retaliatory actions under New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011). Under CEPA, any retaliatory action on the part of the employer is a violation and therefore recoverable if the action(s) have proximately caused the injury to employee. Donelson, 206 N.J.at 249 (referencing N.J.S.A. 34:19-5). Also, where appropriate, “the court shall order compensation for all lost wages, benefits and other remuneration to the fullest extent possible.” Id. (emphasis added). Such damage can include adverse employment capabilities due to mental unfitness for duty. Id. These protections exist to encourage whistleblowing on the part of employees and to protect those whistleblowers from any retaliation taken by their employers regardless of their employment status. CEPA protects equally those who are discharged, who suffer a retaliatory hostile work environment, who suffer psychiatric distress forcing early retirement, and even those currently employed by the retaliating company who were retaliated against in some fashion for their whistleblowing actions.
In Donelson, the plaintiff Seddon, was a long-term employee of DuPont Chambers Works, who after approximately 30 years of employment, reported concerns regarding the inadequate procedures the company employed in handling a particular hazardous substance. After filing an OSHA complaint, DuPont subjected Seddon to disparate and hostile treatment. Seddon eventually suffered an emotional breakdown, was placed on disability and he eventually resigned from his job. Seddon did not claim nor was he found to have suffered a constructive discharge at the hands of his employer, yet nonetheless was entitled by the Court to the full spectrum of tort recovery. This is because “other adverse employment actions taken against an employee” may lead to the proximate causation of economic loss, and any such event may lead to the full spectrum of tort recovery. Donelson, 206 N.J. at 257. Seddon’s psychologist recommended time away from work and even filed the papers for disability leave. Hence, the court in Donelson held that in the circumstance where an employer’s retaliatory action proximately causes employee to suffer a documented mental incapacitation, that employee has a right to recover lost wages even in the absence of a constructive discharge. Id. at 263.
Herbe v. Rutgers, 2020 N.J. Super. Unpub. LEXIS 2563 (App. Div. decided December 29, 2020) is a recently decided Appellate Division case which is a progeny of Donelson. Nurse Herbe was a Clinical Nurse Coordinator for University of Medicine and Dentistry of New Jersey. Herbe was assigned with her supervisor and a coworker to audit medical charts, but they refused to help her with the audit because they were busy writing an essay for the supervisor’s graduate school application. In fact, they had the temerity to ask Herbe to help them author the essay, but rather than do so, Herbe left the room they were all in without comment. Thereafter, Nurse Herbe reported her supervisor and her coworker to the employer, believing they were guilty of theft of time, plagiarism, fraud, and ethics rules. Almost immediately after reporting the misconduct, Plaintiff’s supervisor and coworker began to harass Herbe at work, calling her a “mole,” undermining Plaintiff’s supervisory authority of a new employee, and making demeaning comments about her weight, clothing, and jewelry. The harassment Herbe was forced to endure at work eventually placed her under the care of a psychologist who placed her on disability leave for an indefinite period of time. In response, the employer fired her.