Overview of New Jersey’s Conscientious Employee Protection Act
A few weeks ago, I commented on a recent New Jersey case concerning New Jersey’ Conscientious Employee Protection Act (CEPA), and the need to allege that the employee was either terminated or “constructively terminated,” that is, that the employer made the employee’s working conditions so intolerable that the employee feel that he or she had no recourse but to quit.
A few readers have asked for more information regarding CEPA.
It is often difficult for employees to put the public good ahead of their own interest and to complain about their employer’s potentially illegal activity. Recognizing this difficulty, and the importance of ensuring lawful business conduct, New Jersey enacted the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., which has been described as one of the most far reaching whistle-blower protection laws in the county. It protects employees from retaliation for disclosing illegal conduct, testifying before a public body and for refusing to participate in an unlawful activity
Disclosure of Illegal Activity
CEPA prohibits employers from retaliating against an employee because the employee discloses, or threatens to disclose, an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation. CEPA protects disclosures made to either a supervisor and to a public agency or official. An employer also cannot retaliate against an employee who raises concerns about potential illegal activity by a company with whom the employer has a business relationship. Licensed or certified health care professional are also protected under CEPA for raising concerns about improper quality of patient care.
Not all complaints are protected, however. The complainant must reasonably believe that the conduct is in violation of law. CEPA also protects employees who disclose, or threaten to disclose, fraudulent or criminal activity, including potential fraud against shareholders, investors, clients, patients, customers, employees and other persons. Mere disagreement with management, however, is not protected by CEPA. Unreasonable complaints are also not protected. While the complainant is not required to be correct, he or she must demonstrate a reasonable belief that the conduct at issue was illegal or fraudulent.
Testimony Before a Public Agency
CEPA also prohibits an employer from retaliating against an employee who provides information to, or testifies before, any public body conducting an investigation or hearing into a potential violation of law by the employer or its business associates. Protected activity also includes investigations and hearings into potential deception or misrepresentation by the organization to shareholders, investors, clients, patients, customers and other individuals. CEPA also protects licensed or certified healthcare professionals who provide information to, or testify before, a public body investigating the quality of patient care.
Objection and Refusal to Participate
CEPA also prohibits employers from retaliating against employees who object to, or refuse to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Mere disagreements with management decisions are not protected; the whistle-blowing activity in question must serve a public interest, and should be able to point to some law or public policy that is being violated. The employee must also have a reasonable basis for his or her allegations.
CEPA protects employees from discharge, suspension, demotion or other adverse employment action affected the employee’s terms and conditions of employment. Courts have found that a series of abusive conduct by supervisors, veiled death threats, multiple disciplinary investigations and job transfers can constitute retaliatory action.
Complainants must file civil actions within one year, and have the right to a jury trial. Damages may include reinstatement, back pay, front pay, emotional distress, punitive damages and attorneys fees.
Other Statutes Prohibiting Retaliation
There are, of course, other statutes that also prohibit retaliation. For example, under both federal and New Jersey discrimination laws, employers cannot retaliate against employees who complain about unlawful discrimination or harassment. Other laws also have anti-retaliation and whistleblower provisions, including Sarbanes-Oxley (“SOX”) and the recently enacted Patient Protection and Affordable Care Act of 2009.