WORKERS MAY SUE AS WHISTLEBLOWERS IF THEY ARE FIRED FOR COMPLAINING TO THEIR EMPLOYER ABOUT ITS WAGE LAW VIOLATIONS

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.

However, our Appellate Division saw things differently. Even though Costa failed to cite to the NJWPL in her complaint, the Appellate Division concluded Costa pled enough facts to demonstrate a potential NJWPL claim so long as the complaint is properly amended to expressly state so. In doing so, the appellate court reasoned that the motion court’s assessment that the dispute between Costa and her employer was merely “personal” in nature was flawed because inherently “all laws and regulations are imbued with public interest.” Dzwonar v. McDevitt, 177 N.J. 451, 464 (2003).

Because CEPA has remedial purposes, our state legislature did not intend to require all plaintiffs alleging CEPA claims to have complaints involving violations of public policy. Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 (2000). Additionally, CEPA does not require the complained-of activity to have actually violated a law or regulation, but merely for the employee to have a reasonable belief that it does. Dzwonar, 177 N.J. at 464. For these reasons, the Costa appellate court held that Costa’s stated reasonable belief that her employer was violating New Jersey wage laws by withholding money from her paychecks was sufficient to state an actionable CEPA claim.

If you have suffered retaliation from your employer for having disclosed, objected to, or refused to engage in conduct you reasonably believe was fraudulent, violated law or was contrary to public policy, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help in assessing whether you have an actionable claim against your employer. The statute of limitations to bring a whistleblower claim in New Jersey is only one year from the date you suffer retaliation by your employer, so do not delay. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.