Articles Posted in Whistleblower Claims

New Jersey’s whistleblowing law is known as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”).  To prove a CEPA case, an employee must show that because they disclosed, objected, and/or or refused to participate in activities engaged in by their employer or their coworker(s) that they reasonably believed to be a violation of law, were fraudulent or were contrary to public policy, they suffered an adverse employment action.  CEPA defines an adverse employment action, i.e., to be a “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). Although our courts in New Jersey recognize that retaliatory action can take the form of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003), the question of whether the issuance of poor performance evaluations may be viewed as an adverse employment action under CEPA is not so clear.

The courts in New Jersey did not always consider an employee who received poor performance evaluations to have suffered retaliation under CEPA.  See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366 (2002) (finding negative performance evaluations were not an adverse employment action where plaintiff was told her job was safe). However, for repeated negative performance evaluations to qualify as an adverse employment action under CEPA, our historically an employee to either 1) prove that the evaluation(s) were used as the direct basis for their termination, suspension, demotion or reduction in pay/benefits; or 2) show that the evaluation(s) was so harsh, unjust, and offensive that it caused them to suffer severe physical or psychological symptoms which forced them to take a leave of absence or resign. Id.; See also  Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003); Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011)

Recently, however, the Unites District Court of New Jersey in Goode v. Camden City Sch. Dist., U.S. Dist. 2019 LEXIS 203303 (November 22, 2019), held that negative performance reviews alone may be enough to constitute an adverse employment action under CEPA. In Goode, the plaintiffs were teachers who sued their school district, as well as their respective individual principals, for violations of CEPA and other statutes. They alleged that the superintendent implemented a policy to use a new evaluation system as pretext to pressure teachers over the age of forty (40) to retire. Id. at *4. Under the new evaluation method, superintendents were required to forward tenure charges of inefficiency to the Commissioner of Education if they received consecutive annual teacher performance evaluations with scores of “partially effective” or “ineffective.” The teacher as then subject to being terminated, suspended, demoted, or receive a deduction in pay/benefits if the Commissioner sustained the tenure charges.

A worker in New Jersey who is fired for complaining to their employer about its New Jersey’s wage law violations may be able to sue to recover damages under our state’s whistleblowing laws. Recently, the New Jersey Appellate Division clarified that a plaintiff does not need to allege both a violation of a statute and a matter of public policy to state a cause of action under New Jersey’s Conscientious Employee Protection Act (CEPA). Costa v. Total Rehab & Fitness, 2019 N.J. Super. Unpub. LEXIS 1286 (App. Div., June 5, 2019). CEPA defines protected “whistle-blowing activity” to occur when an employee “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes is… in violation of a law, or rule or regulation promulgated pursuant to law.” N.J.S.A. 34:19-3.

In reversing in part the Camden County Superior Court’s earlier decision dismissing allegations of CEPA violations in plaintiff’s complaint for failure to state a claim, the Appellate Division reasoned that the complaint should have been dismissed without prejudice to give the plaintiff an opportunity to amend her complaint as the circumstances of her termination may have amounted to a violation of CEPA.

Catherine Costa worked as an occupational therapist for Total Rehab & Fitness between April and September 2013. During her employment, she agreed to be paid in accordance with a scaled compensation system based on the number of patients that visited her during the week. Despite the agreed upon compensation system in place, Costa’s employer frequently paid her less than required by her contractual rate which is a violation of the New Jersey Wage Payment Law (NJWPL). After a series of email exchanges in which Costa informed her employer about the discrepancies in her paycheck only to be met with frustration toward her demands, Costa was terminated. Id. at 4-6. The Superior Court dismissed Costa’s complaint because of her failure to specify that her employer violated the NJWPL. However, it also went one step further and concluded that Costa’s complaints about shortages in her paycheck involve “a purely personal and private dispute, insufficient to meet the elements of a CEPA claim.” Id.