Retaliation / Whistleblowing

New Jersey’s Whistleblower Law Prohibits Retaliatory Transfer to Less Desirable Job

June 1, 2018 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit. He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad. Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

The trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits. Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case. Det. Scozzafava appealed.

Court Extinguishes Volunteer Firefighter’s Whistleblower Claim

October 13, 2017 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that volunteer firefighters are not protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), because they are not “employees.”

For 20 years, Jeffrey Sauter served as a volunteer firefighter for the Township of Colts Neck, Fire Company No. 2. Although he was not paid any wages for his services, he earned between $400 and $1,500 in deferred compensation benefits per year under the Emergency Services Volunteer Length of Service Award Program (“LOSAP”).

In 2004, Mr. Sauter filed another CEPA lawsuit against his fire company, claiming it suspended him for 18 months in retaliation for complaints he made about the bidding process relating to renovations of the fire hall. He eventually settled that case for $10,000, including attorney’s fees. Nonetheless, Mr. Sauter believed the fire company owed him another $8,000 for his legal fees.

CEPA Prohibits Employer from Retaliating Against Attorney For Refusing to Violate Ethics Rule

August 3, 2017 | by Jonathan I. Nirenberg

On July 25, 2017, the United States Court of Appeals for the Third Circuit recognized that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), prohibits an employer form retaliating against a lawyer because he refused to engage in an activity he reasonably believes violates attorney ethics.

Steven Trzaska worked as a patent lawyer for L’Oréal USA, Inc. The company’s French parent company, L’Oréal, S.A., instituted a quota for the number of patents applications each patent team had to reach, and warned employees that if they did not meet their quota “there would be consequences which would negatively impact their careers and/or continued employment.” In 2014, L’Oréal set a quota of 40 patents for Mr. Trzaska’s team. However, Mr. Trzaska and his team did not believe there were 40 patentable products for which they could file patent applications in good faith.

Like all lawyers, Mr. Trzaska is bound by Rules of Professional Conduct (“RPCs”). For example, one such rule established by the United States Patent and Trademark Office (“USPTO”) prohibits patent lawyers from making frivolous or bad-faith patent applications. Likewise, an applicable Pennsylvania RPC prohibits lawyers from making false statements to a court or tribunal such as the United States Patent Office.

Court Overturns Jury Waiver and Fee Award to Employer Under CEPA

February 14, 2017 | by Jonathan I. Nirenberg

In a recent published opinion, New Jersey’s Appellate Division reversed a trial court’s rulings that an employee had waived his right to a jury trial under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Greg Noren worked as a Relationship Manager for Heartland Payment Systems, Inc. for more than seven years. During that time, he signed two employment agreements that indicated he waived “any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.” Both contracts also included provisions stating that, in any lawsuit “arising out of or related to this Agreement, the successful party shall be awarded . . . costs of suit, fees of experts and reasonable attorneys’ fees against the unsuccessful party.”

After Heartland fired him, Mr. Noren filed a lawsuit in which he claimed the company had breached his employment agreement and retaliated against him in violation of CEPA.

Third Circuit Reinstates Police Officers’ Whistleblower Case

November 28, 2016 | by Jonathan I. Nirenberg

A recent case from the Third Circuit Court of Appeals reinforces the fact that an employee who objects to something he reasonably believes violates the law does not have to be correct to be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Police Officers Anthony Galiazzi, Charles Holland and John Williamson work for the Camden Police Department. They objected to the department’s “directed patrols” policy because they believed it violated New Jersey’s anti-quota law. Under Camden’s policy, police officers were required to speak to at least 18 (and in some instances at least 27) residents per shift for up to 15-20 minutes each.

Officers Galiazzi, Holland and Williamson objected to the directed patrols policy because they believed it violated New Jersey’s anti-quota law, which prevents police departments from requiring police officers to issue a minimum number of arrests or citations. Among other things, they claim Camden retaliated against them in violation of CEPA by transferring them from the elite unit to regular patrol duty, reducing their salaries, taking away vacation, placing limits on their sick leave and having the Internal Affairs unit investigate them.

Federal Labor Laws Do Not Preempt Union Members Whistleblower Claim

September 1, 2016 | by Jonathan I. Nirenberg

In an important employment law decision, last month the New Jersey Supreme Court ruled that an employee can pursue a retaliation claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”) even though his alleged whistleblowing activity has some relationship to his rights under the collective bargaining agreement (“CBA”) between his employer and his union.

Salvatore Puglia worked for Elk Pipeline, Inc. He was a union member who was subject to a CBA. Mr. Puglia and one of his coworkers complained to their supervisor when the company cut their salary in half. They eventually asserted that Elk was violating New Jersey’s Prevailing Wage Act, a wage and hour law that entitles certain employees assigned to public works jobs to be paid a specific legally-established minimum hourly rate. Mr. Puglia also complained to the company’s president about this violation of law.

Eventually, Elk resumed paying Mr. Puglia and his coworkers their full salary. However, the company failed to pay Mr. Puglia all of the back pay he was owed. According to Mr. Puglia, when he objected about this the company’s president warned him to “either be quiet and keep [his] job or be laid off.”

Whistleblower Law Applies Even if Employer Already Aware of Violation of Law

August 9, 2016 | by Jonathan I. Nirenberg

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.

Jacqueline 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.

Employee Can Be Fired For False Affidavit Supporting Discrimination Claim

May 5, 2016 | by Jonathan I. Nirenberg

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.

Ariel 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.

First Amendment Protects Speech Perceived to be Protected Political Activity

April 28, 2016 | by Jonathan I. Nirenberg

Earlier this week, the United States Supreme Court ruled that the First Amendment prohibits the government from demoting an employee because it incorrectly believed the employee had engaged in Constitutionally-protected political speech.

The case involves Jeffrey Heffernan, a police officer who worked for the City of Paterson, New Jersey. In 2005, Lawrence Spagnola was running for mayor against incumbent Mayor Jose Torres. Mayor Torres had appointed the Patterson Police Chief, James Wittig, tore his position.

At the request of his mother, Mr. Heffernan picked up a large sign supporting Mr. Spagnola for mayor that his mother wanted to put on her front lawn. Other members of the Paterson Police Department saw Mr. Heffernan holding the sign while he was talking to members of Mr. Spagnola’s campaign staff.

“Blue Wall of Silence” Looms Large in Whistleblower Case

December 1, 2015 | by Jonathan I. Nirenberg

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.

In 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.”