1. What legal protection does New Jersey provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
New Jersey recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a clear mandate of public policy. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates a public policy established in constitutional provisions, statutes, regulations, judicial decisions, and perhaps even a professional code of ethics.
To determine what constitutes public policy, New Jersey courts will look to statutes, constitutional provisions, regulations, judicial decisions, and (perhaps) professional codes of ethics to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a New Jersey statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening New Jersey’s public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Legislature of New Jersey has adopted statutory protections for certain activities. Notably, New Jersey has a general whistleblower protection statute-the Conscientious Employee Protection Act (CEPA). Also, several other New Jersey statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, family leave, hazardous substances, minimum wage, occupational health and safety, ski lift safety, wage discrimination (equal pay), and workers’ compensation.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that is contrary to the public policy of the state of New Jersey. Specifically, employees are protected from retaliation for the following protected activities:
- Reporting workplace safety violations
- Refusing to commit an illegal act
- Reporting illegal activity to an outside authority
An employee who reports wrongdoing internally to a supervisor is not protected under the public policy exception because the internal report does not bring the wrongdoing to the attention of a public official. However, in certain instances, an internal report is protected under the general whistleblower protection statute, the Conscientious Employee Protection Act (see statutory protections, below).
Statutory Protections
General Whistleblower Protection: Under the Conscientious Employee Protection Act (CEPA) ⚖, an employee may not be discharged (or discriminated against) in retaliation for the following activities:
- Disclosing, or threatening to disclose, an activity, policy, or practice of the employer (or another employer) that the employee reasonably believes is illegal, fraudulent, or criminal. The disclosure may be made to either a supervisor or a public body (legislative body, judicial officer, grand jury, administrative agency, law enforcement agency, department in the executive branch, or any subdivision; federal, state, or local). However, there is an important caveat for employees who disclose information to a public body (see below).
- Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into an employer’s violation of law.
- Objecting to-or refusing to participate in-an activity, policy, or practice that the employee reasonably believes is illegal, fraudulent, criminal, or incompatible with a clear mandate of public policy. The clear mandate of public policy must concern the protection of the environment or the public health, safety, or welfare.
However, there is an important caveat for employees who disclose information to a public body and seek protection under CEPA. An employee must first inform a supervisor of the alleged violation and then allow the employer a reasonable opportunity to correct the violation. This disclosure to a supervisor must be made in writing. An exception to this requirement is made in two instances: (1) where the employee is reasonably certain that a supervisor is aware of the violation, and (2) where the employee reasonably fears physical harm in retaliation for the disclosure and the situation is emergency in nature. N.J. Stat. § 34:19-4.
Note that CEPA only requires an employee’s “reasonable belief” that the employer was violating the law. The employee’s suspicion that the employer is violating the law does not need to turn out to be true-an employee is still protected from retaliation if it turns out that the employer was not violating the law, so long as the employee’s suspicion was reasonable.
Additional protections for licensed or certified health care professionals are also embedded in CEPA. In addition to the general protections for employees, licensed or certified health care professionals may not be discharged in retaliation for:
- Disclosing an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care (as defined by statute, rule, regulation, or professional code of ethics)
- Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into the quality of patient care
- Objecting to an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care ⚖
Civil Service: An employee may not be retaliated against for disclosing a violation of law, governmental mismanagement, or abuse of authority. N.J. Stat § 11A:2-24.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a proceeding, or assisting in a proceeding concerning New Jersey’s laws against employment discrimination. N.J. Stat. § 10:5-12(d).
Family Leave Act: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice that violates the New Jersey Family Leave Act. Nor may an employee be discharged (or discriminated against) in retaliation for filing a charge, instituting a proceeding, providing information in connection with a proceeding, or testifying in a proceeding under the Family Leave Act. The Family Leave Act allows employees to take time off from work to care for a new-born child or to attend to a serious health condition of a family member. N.J. Stat. § 34:11B-9.
Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising a right under the Worker and Community Right to Know Act, a law that regulates the use of hazardous substances N.J. Stat. § 34:5A-17.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning minimum wage violations. Also, an employee may not be discharged (or discriminated against) for serving on a wage board. An employer may fined up to $1,000 per violation. N.J. Stat. § 34:11-56a24.
Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising rights concerning worker health and safety. N.J. Stat. § 34:6A-45.
Schools: An employee of a school may not be retaliated against for reporting harassment or bullying. N.J. Stat. § 18A:37-16.
Ski Lift Safety: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning ski lift safety. N.J. Stat. § 34:4A-13.
Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Jersey’s wage discrimination laws. Under these laws, discrimination in wages on the basis of sex is prohibited. N.J. Stat. § 34:11-56.6.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for claiming (or attempting to claim) workers’ compensation benefits, or testifying in a workers’ compensation proceeding. An employer may be fined up to $1,000 and imprisoned for up to 60 days for violations of this statute. N.J. Stat. § 34:15-39.1.
3. How do I file a whistleblower or retaliation claim in New Jersey?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. N.J. Stat. § 2A:14-2.
General Whistleblower Protection: Under the Conscientious Employee Protection Act (CEPA), an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. An employee may receive the full array of legal and equitable remedies, including reinstatement, recovery of lost wages, and reinstatement of full fringe benefits. In addition, an employer may be assessed a civil fine and punitive damages. By filing a lawsuit under CEPA, an employee waives all other rights and remedies available under any contract, collective bargaining agreement, or state law. If you believe you have a claim, you should contact a lawyer immediately.
Civil Service: An employee may file a claim with the Civil Service Commission. Appeals should be sent to:
Civil Service Commission
Division of Appeals and Regulatory Affairs
P.O. Box 312
Trenton, New Jersey 08625-0312
If you believe you have a claim, you should contact a lawyer immediately.
Discrimination: An employee may file a signed, written complaint with the New Jersey Division on Civil Rights (DCR). The complaint must be filed within 180 days of the retaliatory action. The complaint must state the name and address of the person alleged to have committed the retaliatory action. An employee may also file a lawsuit in an appropriate court within 2 years of the retaliatory action.
he DCR provides information on how to file a complaint and contact information for your local DCR office.
Hazardous Substances: An employee may file a complaint with the commissioner of the New Jersey Department of Labor. The complaint must be filed within 30 days of the retaliatory action. The Department will investigate and may refer the matter to the Office of Administrative Law, which will hold hearings to resolve the matter. If you believe you have a claim, you should contact the Department of Labor immediately at:
Commissioner
New Jersey Dept. of Labor
John Fitch Plaza
13th Floor, Suite D
P.O. Box 110
Trenton, NJ 08625-0110
Phone: 609-292-2323
Fax: 609-633-9271
Occupational Health and Safety: An employee may file a complaint with the New Jersey Department of Labor. The complaint must be filed within 180 days of the retaliatory action. The Department will investigate and may order appropriate relief, including reinstatement with back pay. If you believe you have a claim, you should contact the Department of Labor immediately. Contact information is provided above.
Workers’ Compensation: An employee may file a complaint with the New Jersey Department of Labor. The complaint must be filed within 2 years of the retaliatory action. Alternatively, an employee may file a lawsuit in an appropriate court within 2 years of the retaliatory action.
The Department of Labor, Division of Workers’ Compensation operates a web site that provides many brochures and publications explaining the workers’ compensation process, and has made the appropriate discrimination complaint form available. The Division of Workers’ Compensation can also be reached at:
Division of Workers’ Compensation
NJ Department of Labor and Workforce Development
P.O. Box 381
Trenton, New Jersey 08625-0381
Phone: (609) 292-2515
Fax (609) 984-2515
E-mail: dwc@dol.state.nj.us