In Loeb v. Vantage Custom Classics, Inc., ESX-L-4762-20, the New Jersey Superior Court, Law Division, Essex County, was faced with the question of whether an employee who suffers an adverse employment action because of complaints he made to his employer about its failure to follow Governor Phil Murphy’s Executive Orders designed to mitigate the spread of the COVID-19 virus can sue as a whistleblower under the New Jersey Conscientious Employee Protection Act (CEPA). The Court answered this question in the affirmative.
On March 9, 2020, New Jersey Governor Phil Murphy issued Executive Order No. 103, declaring a State of Emergency and a Public Health Emergency because of the COVID-19 pandemic. On March 16, 2020, Governor Murphy issued Executive Order No. 104 implementing aggressive social distancing measures to mitigate further spread of COVID-19 in New Jersey. On March 21, 2020, Governor Murphy issued Executive Order No. 107 directing all residents employed in nonessential jobs to stay at home. Paragraph 10 of Executive Order 107 states that, “All businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” And on April 8, 2020, Governor Murphy issued Executive Order No. 122 incorporating all relevant Executive Orders in relation to pandemic COVID-19, Declaring;
“All essential retail businesses, warehousing businesses, manufacturing businesses, and businesses performing essential construction projects must also adopt policies that include, at minimum, the following requirements:
- Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;
- Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;
- Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and
- Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment.”
Plaintiff Marc Loeb was hired as the Chief Operating Officer of Vantage, reporting to Defendant Ira Neaman (“Neaman”), the CEO. Vantage Custom Classics, Inc. (“Vantage”) manufactures apparel that promotes names and logos of corporations, golf courses, resorts, and colleges. Loeb was responsible for overseeing the operations at each of Vantage’s manufacturing plants located in New Jersey, Missouri, and California. Loeb alleged that on or about March 2, 2020, he began to express concerns about workers’ safety due to the spread of the COVID-19 virus and requested permission to establish protocols at work to protect workers from contracting and spreading COVID-19. Loeb established protocols for additional cleaning of machines, doorknobs, and light switches. Loeb further alleges that on or about March 9, 2020, he composed a letter informing workers of the protocols and ordering them to stay home if they felt sick; this letter was posted at work on March 13, 2020.
On March 15, 2020, Vantage learned for the first time that one of its workers tested positive for COVID-19. Loeb claims he informed Vantage that the company’s factory should be closed in response, but Vantage dismissed the idea and asserted instead that all of its machines had been cleaned since the infected employee had last worked. Loeb alleged he emailed Vantage stating that employees who had contact with the COVID-positive employee should be informed of same and told to self-quarantine. Loeb further alleged Vantage agreed to inform the floor manager who came in contact with the positive-tested employee but did not allow Loeb to inform other workers. However, on the morning of March 19, 2020, Loeb again insisted workers be informed of their exposure to COVID-19. In response, Neaman terminated Loeb’s employment telling him that, “today is your last day.”
Loeb filed suit alleging his employment with Vantage was terminated in violation of CEPA because of his insistence that Vantage follow guidelines and executive orders intended to mitigate the spread of the COVID-19 virus and promote the safety and health of workers. CEPA forbids an employer from taking retaliatory action against an employee because the employee objects to, 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. N.J.S.A., 34:19-3. After filing suit, the Vantage defendants moved to dismiss Loeb’s complaint alleging that it failed to state a claim upon which relief could be granted.
In deciding the motion to dismiss, the motion court was required to “make a threshold determination that there is a substantial nexus between the complained-of-conduct and a law or public policy identified by the court or plaintiff.” Dzwonar v. McDevitt, 177 N.J. 451, 464 (2003). In denying the Vantage Defendants’ motion to dismiss, the motion court found Plaintiff Loeb had pointed to “a numerous amount of specific regulations within the CDC, OSHA and Governor Murphy’s Executive Orders issued both before and after Plaintiff’s termination in response to COVID-19.” The Executive Orders in particular required compliance with CDC guidelines and required employers to take direct actions to protect their employees from the spread of COVID-19 within the workplace.
Do not hesitate to call the attorneys at Mashel law at (732) 536-6161 or fill out the contact form on this page for immediate help if your employer retaliates against you for reporting its failure to implement and enforce the COVID-19 related health and safety standards required by Governor Murphy’s Executive Orders or national CDC guidelines. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.