Most people working in New Jersey understand that the law protects them from obvious workplace abuses. Underpaid? Discriminated against? Injured on the job? You’re legally protected under various State and Federal laws.
But what if you witness something improper from your employer? Perhaps you saw that they were violating policies, discriminating against people of certain races, or disregarding safety procedures intended to protect employees.
You want to report it, but are afraid that your employer will retaliate against you by firing you or discriminating against you if you break your silence.
They shouldn’t get away with that.
In New Jersey, it is against the law for employers to take negative employment actions against an employee who reports what they reasonably believe to be a violation of the law. It’s called New Jersey’s Conscientious Employee Protection Act “CEPA”. Let’s get into it.
What is a Conscientious Employee and how does CEPA protect them?
Many states have laws in place that protect whistleblowers from adverse employment actions like termination, relocation, demotion, placement on an unwarranted PIP, or other types of formal discipline.
A whistleblower is someone who reports organizational wrongdoing, such as legal violations, unethical acts, fraudulent behavior, and similar acts.
New Jersey’s version of a whistleblower act is the Conscientious Employee Protection Act (commonly referred to as CEPA). This act protects New Jersey employees from retaliation when they decide to:
- Speak up against reasonably suspected wrongdoing
- Cooperate in a lawful investigation or with government agencies (OSHA, SEC, etc.)
- Refuse to engage in activities they reasonably believe cross a legal or ethical line
If you’re debating whether staying silent about your employer’s wrongdoing is the safe choice, just know that you have options. CEPA’s job is to protect you in this uncomfortable workplace situation.
What if I don’t want to make a report or be a whistleblower?
CEPA does not require an employee to make a report or be a whistleblower! In fact, an employee is protected under CEPA if they object to or refuse to participate in an activity that they believe to be in violation of the law.
Although its usually best to document your issue and report it to ensure that your employer complies with applicable laws, questioning, objecting, and refusing to engage in (or help with) the activity you believe to be unlawful is still protected under CEPA. However, if you refuse to participate, you should be vocal and document the fact that you are objecting or refusing to participate in the activity and that you’re refusing to take part in the activity or follow an instruction because you don’t think its lawful to do so.
Unfortunately, employers will sometimes retaliate against an employee that refuses to do their unlawful bidding, then lock them out of systems or deny it, so keeping good records and documenting things in writing is key.
But What If I’m Wrong?
CEPA does not require an employee to prove that their employer actually violated the law.
In Dzwonar v. McDevitt, the New Jersey Supreme Court explained that a CEPA claim depends on whether the employee’s belief was objectively reasonable based on the facts available at the time. This includes when an employee objects or refuses to participate in conduct they reasonably believe violates a law/regulation, or public policy. N.J.S.A. 34:19-3(c).
But what does it mean to be reasonable?
New Jersey courts review two factors to determine whether the whistleblower has a reasonable belief that unlawful conduct has occurred or is ongoing.
- Whether the whistleblower genuinely believed the conduct was wrong or unlawful
- A reasonable person could agree based on the same facts available to you
CEPA was not intended to make lawyers out of conscientious employees. But if you’re concerned that your belief may not be legally considered reasonable, you’re not alone. Here are some questions you can ask yourself before raising a whistleblower concern:
- Can you point to a real rule or public policy?
- Does what you complain about relate to that rule?
- Would a reasonable person in my shoes think the same thing?
If you answer yes to all three, you’re likely protected by the CEPA if you go forward with your complaint. Even if your employer disagrees with you and later turns out to be right.
A Real World Example
New Jersey courts grapple with CEPA questions often. Let’s take a look at Abbamont v. Piscataway Township Board of Education.
In Abbamont, a middle school shop teacher (“Abbamont”) noticed that the classroom ventilation system wasn’t working properly. In fact, students and the teacher were beginning to experience respiratory discomfort from fumes and metal dust.
Abbamont complained to the school and refused to operate under those conditions. The school board argued that there was nothing illegal going on and that no regulation had been violated.
Even worse, when his annual contract came up for renewal, the school board chose not to renew it.
Abbamont decided to bring claims against the school for retaliation in violation of CEPA. A jury agreed and awarded Abbamont $60,000.
Although the trial court judge tried to set aside the verdict, the appellate court sided with Abbamont because he demonstrated:
- A real health and safety regulation applied to metal shop ventilation
- A reasonable teacher in his position could believe the same thing
Ultimately, it was his objectively reasonable belief that made the CEPA claim valid.
How to Raise a CEPA-Protected Concern the Right Way
When you are a “conscientious employee” and raise a CEPA issue, how you do it matters. You are not required to file a government complaint or retain an attorney on day one. Your protection under CEPA begins when you raise the issue to your employer.
Step 1: Make an Internal Report (If Appropriate)
Generally speaking, CEPA comes into play when you report:
- a supervisor,
- management,
- HR,
- compliance, or
- another appropriate company representative
that you believe something illegal, fraudulent, or unsafe is happening.
You don’t need legal language, but you do need to make it clear that:
- You are raising a concern about conduct that may be unlawful, improper, or dangerous, and
- You are not just expressing a personal disagreement.
Something as simple as an email or message that says, “I think this is unsafe/illegal misconduct” or “I don’t feel comfortable signing off on this because it seems deceptive,” can qualify for CEPA protection.
Step 2: Speak Up — Particularly If You’re Saying No!
CEPA protects you when you refuse to engage in what you reasonably believe to be an illegal or unethical activity.
Examples include:
“I don’t feel comfortable signing this report as I believe it falsifies figures to our shareholders.”
“I believe this procedure is unsafe and against OSHA rules. I refuse to work until this safety issue is addressed.”
You do not have to say that someone did something wrong. Simply state your concern clearly.
Step 3: Document What Happens Next
After you raise a concern, you should keep a keen eye on your employer. They can’t treat you worse than they did before because you complained about something you reasonably believed was unlawful.
Retaliation can look like:
- termination,
- demotion,
- suspension,
- pay cuts,
- forced transfers,
- sudden performance write-ups, or
- being pushed onto a pretextual performance improvement plan.
CEPA cases are often won or lost based on timing and paper trails. Keep a record of what happens after you complain.
Step 4: Know When to Get Legal Advice
CEPA contains a one-year statute of limitations. N.J.S.A. 34:19-5 . If you let that year go by, you will be barred from filing a lawsuit to enforce your CEPA rights.
A thirty-minute chat with our employment law attorneys can preserve your rights before it’s too late and irreversible mistakes are made.
Worried About Your Rights Under CEPA?
If you’re concerned you’ve been retaliated against in violation of CEPA, it’s time to take action. Memories fade, employers move on, and the statute of limitations waits for no one.
Contact the talented employment law attorneys at Kaminsky Law for exceptional legal advocacy. Because when you’ve lost your job for doing the right thing, a mediocre legal team won’t cut it.
