Articles Posted in Retaliation / Whistleblowing

A ruling opinion from the United States District Court for the District of New Jersey recognizes that an employee can be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), even if her employer knew about the issue before the employee objected about it.

Employee Time CardJacqueline Martelack worked for Toys ‘R’ Us, Inc. as a cashier.  After she was promoted to become a Human Resources Department Supervisor, she told the employee who was training her that someone had been changing her time cards so she was not paid when she worked during her lunch break.  Toys ‘R’ Us investigated her allegations and eventually confirmed that she and her coworkers were not being paid during scheduled breaks that they did not actually take.  After the investigation, Toys ‘R’ Us paid the employees other than Ms. Martelack the wages they were owed for this unpaid work.

In the meantime, Toys ‘R’ Us told Ms. Martelack that she should stop reporting to her current store because it was going to transfer her to another location.  However, it did not assign her to work for two months, and she eventually concluded that she had been fired.  Ms. Martelack subsequently filed a lawsuit alleging in which she alleged, among other things, that Toys ‘R’ Us failed to pay her full hourly wage in violation of the Fair Labor Standards Act (“FLSA”), and fired her in violation of CEPA.

A recent decision from New Jersey’s Appellate Division recognizes that the anti-retaliation provisions of the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) do not protect an employee who submits a false affidavit in support of a coworkers’ discrimination claim.

Witness testifiying under oath in discrimination lawsuitAriel Gonzalez, worked as a Detective for the Waterfront Commission of New York Harbor.  In June 2012, he signed an affidavit in support of the Commission’s former assistant general counsel, Kimberly Zick, in connection with Ms. Zick’s discrimination lawsuit against the Commission under the ADA and the Rehabilitation Act of 1973.  Ms. Zick’s case was dismissed in October 2012 because her allegations did not support her claims.

Shortly after Ms. Zick’s case was dismissed, the Commission began to investigate Det. Gonzalez regarding statements in his affidavit.  When the Commission interviewed Det. Gonzalez he again swore under oath that the statements in his affidavit were truthful.  The Commission then suspended Det. Gonzalez and brought disciplinary charges against him seeking to terminate his employment.

New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

Police Officer whistleblowerIn March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

Yesterday, the New Jersey Supreme Court ruled that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), protects employees who blow the whistle about issues that relate to their job duties.

CEPA is a broad whistleblower law. It prohibits employers from retaliating against employees who, among other things, object to or refuse to participate in activities they reasonable believe are illegal, fraudulent, or violate a clear mandate of public policy relating to public health, safety, welfare or the environment. It also protects licensed medical professionals who object to or refuse to participate in activities they reasonably believe constitute improper quality of patient care.

On several occasions, New Jersey’s Appellate Division has ruled that employees are not protected by CEPA if their objections relate to their job duties. This threatened to dramatically limit the scope of CEPA’s protection since employees typically are in the best position to blow the whistle on activities related to their job functions.

A recent unpublished decision from the New Jersey Appellate Division demonstrates that employees can prove their employers retaliated against them for objecting to discrimination without proving the discrimination actually was unlawful.

Debra Lemeshow worked for PSEG Services Corporation. In 2000, the company made her its Manager, Business Management Support, with a salary of $95,000 and a potential 15 percent annual bonus.

In 2001, PSEG hired a company to compare its compensation packages to similar jobs at other companies. It determined the appropriate salary for Ms. Lemeshow’s position was between $65,000 and $70,000 per year.

On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

There are many ways to prove a retaliation claim.  Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her.  In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.”  But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Retaliation in the workplace and the Fair Labor Standards ActZalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA).  In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

Corporate Tax FraudThe Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.

Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.
To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job. There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA. The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service. Shortly thereafter, Mr. Dukin’s boss ordered him to repair the bus using a bumper-jack. Mr. Dunkin refused because he believed doing so was unsafe because the bus was on uneven ground. His boss then ordered him to go home. At home, Mr. Dukin filed a complaint with New Jersey’s Office of Public Employees Occupational Safety and Health department (PEOSH), which eventually found multiple safety violations. When the Superintendent learned what had happened he fired Mr. Dukin, only to rescind his termination five minutes later. Mount Olive subsequently scheduled a hearing to discuss Mr. Dukin’s employment. Prior to the meeting, Mount Olive offered Mr. Dukin the option of being paid for the final five months of his employment contract if he resigned and waived his legal claims against the school district. Mr. Dukin rejected this offer. Mount Olive permitted Mr. Dukin to finish out the school year, but did not renew his contract for the following year. Mr. Dukin then filed a retaliation lawsuit under CEPA. The Appellate Division found Mr. Dukin is protected by CEPA. It distinguished its previous rulings regarding employees who object in the course of performing their job duties, explaining that unlike Mr. Dukin each of those cases involves an employee whose “central job description was to assess and analyze risk for” their employer. In other words, it establishes a different standard for (1) employees whose jobs focus on safety or compliance, who either have limited or no protection under CEPA; and (2) all other employees, who are protected by CEPA whether or not their objections relate to their job duties. The Appellate Division also found Mr. Dukin has enough evidence to prove retaliation. This includes the fact that his supervisor previously told the mechanics he would “bury” them if they ever went over his head, the timing and circumstances of Mount Olive’s disciplinary actions toward him, and the fact that the school district changed its justification for firing him from budgetary concerns to poor performance. Accordingly, the court concluded that a jury should determine whether Mount Olive retaliated against Mr. Dukin in violation of CEPA. The Dukin opinion is unpublished, so it is not a binding precedent. However, it is a reminder that this question is in a state of flux that will remain until the New Jersey Supreme Court finally answers this question.

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