In June 2014, the New Jersey Supreme Court, in Hitesman v. Bridgeway, Inc., affirmed the decision of a lower appellate court dismissing a claim brought by a healthcare worker under the New Jersey whistleblower law, the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA). The decision is significant because the Supreme Court clarified the role of a trial court on the issue of whether a plaintiff has sufficiently identified a rule of law or a public policy that provides the necessary foundation for a CEPA claim.
Tagged: NJ Conscientious Employee Protection Act (CEPA)
Is This Thing On? NJ Appellate Division Bars Employees’ Attempt to Use Secret Audio Recording In Support of CEPA and LAD Claims
Employees sometimes engage in questionable conduct to gather evidence to strengthen their claims of employment discrimination and retaliation. In Quinlan v. Curtiss-Wright Corporation and State of New Jersey v. Saavedra, employees misappropriated confidential employer documents to support their claims. More recently, in Stark v. South Jersey Transportation Authority, two employees surreptitiously voice-recorded a workplace conversation to support their claims under the New Jersey Law Against Discrimination (“LAD”). The Appellate Division, however, pressed the “STOP” button on the Stark plaintiffs’ efforts to utilize that recording as evidence, noting that recording violated the New Jersey Wiretap Act and failed to satisfy the seven-part balancing test established by the New Jersey Supreme Court in Quinlan for determining whether that violation nevertheless constituted “protected activity” under the New Jersey Law Against Discrimination (“LAD”).
The New Jersey Supreme Court recently decided to review a recent decision by the Appellate Division which threatens to expand the protections of the Conscientious Employee Protection Act (“CEPA”) to those employees whose job duties and responsibilities expressly require them to report to their employer potential or actual violations of law or public policy. The issue to be decided by the Supreme Court in Lippman v. Ethicon will be whether employees who are responsible for monitoring and reporting on employer compliance with relevant laws and regulations — so-called “watchdog” employees — seek whistleblower protection under CEPA, and, if so, under what circumstances?
NJ Supreme Court Grants Leave to Appeal to Employee After NJ Appellate Division Permits Indictment Arising From Her Theft of Employer Documents to Prove LAD and CEPA Claims
The New Jersey Supreme Court recently granted defendant Ivonne Saavedra’s leave to appeal the Appellate Division’s decision in State v. Saavedra, the subject of a previous post, affirming the trial court’s denial of her motion to dismiss an indictment charging her with official misconduct for stealing confidential documents from her employer to support her claims under New Jersey’s Conscientious Employee Protection Act (“CEPA”) and the Law Against Discrimination (“LAD”). The majority in the Appellate Division was not persuaded by Saavedra’s argument that her actions were protected under Quinlan v. Curtiss-Wright Corp., also the subject of a previous post, where the Supreme Court held that an employee who was allegedly terminated for using stolen documents in litigation against her employer could assert a claim of retaliation. A dissenting opinion in the Appellate Division in Saavedra, authored by Judge Simonelli, concluded that the indictment should be dismissed with prejudice. For Judge Simonelli, it was fundamentally unfair to criminally prosecute an employee for taking employer documents while engaged in protected activity pursuant to CEPA or the LAD because the law does not give fair warning that the conduct is illegal. Though Saavedra concerns a public employee/employer, it has important implications for private employers as well. The Gibbons Employment & Labor Law Department will continue to monitor developments in the case...
Employers often use arbitration programs with employees to elect a forum that eliminates jury trials and class actions. A New Jersey District Court recently found that the employer’s handbook containing a provision which, gives the employer the exclusive ability to change the provisions of the handbook without notice to employees, invalidated an employee’s arbitration agreement.
NJ Appellate Division Permits Criminal Indictment Against Employee Who Stole Employer’s Documents in Connection with LAD and CEPA Claims
The Superior Court of New Jersey, Appellate Division, has held that a public sector employee can be criminally indicted for stealing employer documents to support her claims under the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (LAD). In State of New Jersey v. Saavedra, the Appellate Division found, in a 2-1 decision, that a criminal judge is not required to perform a Quinlan analysis when deciding a motion to dismiss an indictment charging the employee with second-degree official misconduct and third-degree theft of public documents. Instead, the State merely must introduce evidence to support a prima facie case that the defendant committed the crime. In dissent, Judge Simonelli disagreed with the majority, concluding that the doctrine of fundamental fairness should be expanded to preclude criminal prosecution of employees for theft or official misconduct for taking confidential employer documents while engaged in protected activity pursuant to the whistleblower and anti-discrimination laws.
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination (“LAD”) and the Conscientious Employee Protection Act (“CEPA”), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have “reasonably believed” that the complained-of activity was fraudulent. Finally, addressing the plaintiff’s emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency.
Introduction – In a case of particular interest to New Jersey employers, the New Jersey Supreme Court has been asked to review an appellate ruling that an employee who reported violations of law to her superiors was not a “whistle-blower” because her reporting was required as part of her job duties. A decision by the Supreme Court will have a substantial impact on the scope of New Jersey’s whistle-blower statute, the Conscientious Employee Protection Act (“CEPA”) . Factual Background – In White v. Starbucks, plaintiff Kari White was employed as a district manager in Starbucks’ Upper Mid-Atlantic Region, where she was responsible for the overall management of six Starbucks locations including some in New Jersey. According to the job description for plaintiff’s position, she was responsible for, among other things, “ensuring that employees adhere to legal and operational compliance requirements.” Prior to formally assuming her management role, plaintiff participated in a six-week training period, where she received instruction in retail management and compliance with public health laws. She also received and reviewed a manual titled “Starbucks Food Safety, Store Cleanliness and Store Condition Standards.”
NJ Supreme Court Rules That Lost Wages are Recoverable Under CEPA Even in Absence of Actual or Constructive Discharge
In a case of particular interest to New Jersey employers, the New Jersey Supreme Court ruled on June 9, 2011, in Donelson v. DuPont Chambers Works (A-112-09) that an employee who files suit under the Conscientious Employee Protection Act (“CEPA”) may recover back and front pay, even if the employee was not fired or constructively discharged, if the employee can show that he became mentally disabled as a result of the employer’s retaliation. The Court rejected the conclusion of the Appellate Division that the same standards govern remedies under CEPA and the New Jersey Law Against Discrimination (“LAD”), and that a constructive discharge must be proven to obtain back and front pay damages.