What Are The Elements Of A New Jersey CEPA Claim?

The New Jersey Conscientious Employee Protection Act, N.J.S.A. §§ 34:19-1 – 34:19-8 (“NJ CEPA”), prohibits all public and private employers from retaliating against employees who disclose, object to, or refuse to participate in certain actions that the employees reasonably believe are either illegal or in violation of public policy.

More particularly, the New Jersey Conscientious Employee Protection Act bars all employers from retaliating against an employee because the employee does any of the following:

• Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, in the case of an employee who is a licensed or certified health care professional, that the employee reasonably believes constitutes improper quality of patient care, or (2) is fraudulent or criminal;
• Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship; or
• Objects to, or refuses 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, (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.

N.J.S.A. §§ 34:19-3, 34:19-3(a), 34:19-3(b), 34:19-3(c); see id. § 34:19-2.

To state a prima facie case under CEPA, a plaintiff must establish that: “(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in [NJ CEPA]; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.”  Dzwonar v. McDevitt, 828 A.2d 893, 177 N.J. 451, 462 (N.J. 2003); accord Turner v. Associated Humane Societies, Inc., 935 A.2d 825, 831, 396 N.J. Super. 582 (N.J. App. Div. 2007).

An employee or former employee may maintain a civil action under NJ CEPA in any court of competent jurisdiction.  N.J.S.A. § 34:19-5.

The full array of tort damages is available to an employee in a NJ CEPA action, including injunctive relief, reinstatement of a former employee to the same position or to an equivalent position, damages for emotional distress, reinstatement of full fringe benefits and seniority rights, compensation for lost wages and benefits, punitive damages, and recoupment of reasonable costs and attorney’s fees.  N.J.S.A. § 34:19-5.

For this author’s previous blog posts discussing court decisions and arbitration awards interpreting or applying NJ CEPA, see here, here, and here.

If your company needs assistance or guidance on a labor and employment issue and your company is located in the New Jersey area, call Attorney David S. Rich at (347) 941-0760.