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Retaliation : an overview

In New Jersey, both Federal and State employment discrimination statutes prohibit discrimination against an employee because he or she filed a discrimination complaint or charge. The concept of such protected activity also extends to internal complaints to a supervisor or other levels of management. In addition, developing case law in New Jersey also protects an employee from retaliation for filing a workers compensation claim, absence from work for jury duty and when an adverse employment action violates a clear mandate of public policy. The last form of protected activity could protect an employee from discharge because he or she refused to falsify legal records or “blew the whistle” on an employer’s environmental violations.

Of course, there are specific protections set forth in other statutes such as Sarbanes-Oxley and Section 11(c) of the Occupational Safety & Health Act. The federal statutes obviously are not limited to New Jersey employers. New Jersey also has a specific whistleblower statute: the Conscientious Employee Protection Act (CEPA). This statute protects an employee from retaliation for whistleblowing when the employee reasonably believes that an employer’s conduct violates either a law, rule or regulation promulgated pursuant to law; is fraudulent or criminal or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

It is important to note that the employee need not be correct, but need only establish an objectively reasonable belief. If the employee has such a reasonable belief, he or she is deemed to have engaged in protected whistleblowing activity by complaining to an outside authority, or if he or she objects to, or refuses to participate in, any activity or practice which the employee reasonably believes fits into the categories described above.

New Jersey worker freedom from employer intimidation act

On July 26, 2006, a new statute prohibiting employer retaliation was enacted in New Jersey. The New Jersey Worker Freedom From Employer Intimidation Act prohibits employers from requiring employees to attend meetings or to participate in communications where the purpose is to communicate the employer’s opinion about religious or political matters. The Statute contains a broad definition of political matters which includes political party affiliations and decisions to join or not join in any lawful political, social or community organization or activity. Labor organizations are not included in the definition.

Employers are allowed to make such communications and conduct meetings on the subject matters covered by the Act; however, participation by the employees must be totally voluntary. Indeed, employees may not be penalized in any manner for refusing or failing to participate in such activities. The Act prohibits employers from retaliating against any employee who makes a good faith report of a violation or a suspected violation of the Act. Any aggrieved employee (not just an employee who has been retaliated against) may institute an action within 90 days of the alleged violation.

Remedies for violation of the Statute include injunctive relief, lost wages and benefits, reinstatement, punitive damages (limited to three times the non-punitive damages), and attorney’s fees for the prevailing employee. In addition, an employer may also be liable for civil fines up to $1000 for the first violation and $5000 for each subsequent violation. Consequently, an employer should take care to make clear that participation in any meetings or communications covered by the Statute are purely voluntary. Additional care is necessary to make certain that supervisors recognize that they cannot take any adverse action against an employee who engages in activity protected by the Statute.

The impact of the new Statute will not be fully realized until the courts interpret the statute in different factual situations.

For more information, contact:
Francis X. Dee
1300 Mount Kemble Avenue, PO Box 2075
New Jersey 07962-2075
Tel: 001 (973) 993-8100
Fax: 001 (973) 425 0161
E-mail: fdee@mdmc-law.com
Website: www.mdmc-law.com

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