Whistleblower/CEPA

The New Jersey Conscientious Employee Protection Act (CEPA)

CEPA Language

CEPA provides three areas of whistleblowing activity that is protected under its provisions. CEPA states, “An employer shall not take any retaliatory action against an employee because the employee either (1) discloses, or threatens to disclose to a supervisor or 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 is in violation of a law, or a rule or regulation promulgated pursuant to law; (2) 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 the employer or another employer, with whom there is a business relationship; or (3) objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes  (a) is in violation of a law, or a rule or regulation promulgated pursuant to law; (b) is fraudulent or criminal; (c) is incompatible with a clear mandate of public policy concerning the public health, safety, or welfare or protection of the environment. Proving CEPA cases is usually based upon documents, witness statements, and an illegal practice and a statute or rule in existence against such practice.

Retaliatory “Adverse” Action under CEPA

“Retaliatory action” is broadly defined under CEPA as, “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” Simply put, this means any adverse action affecting the employee’s ability to work. Termination and discipline are easy to understand. The last part of the definition is a wide-encompassing provision that allows adverse actions to be decided on a case-by-case analysis depending on multiple factors that can make up an adverse action.

A Reasonable Belief

CEPA makes it unlawful for an employer to take adverse employment action(s) against an employee who discloses, objects to, or refuses to participate in certain actions that the employee reasonably believes are either illegal or in violation of public policy. What this means is that the employer action on which the employee is blowing the whistle on may, in fact, be legal. The employer may have done nothing wrong at all. CEPA protects the employee who complains about this act, nonetheless, as long as the employee’s perception of the act as being illegal or in violation of a public policy is reasonable. What is reasonable is decided on a case-by-case basis. The employee can be wrong and is protected from retaliation.

Disclosing or Threatening to Disclose

“Disclosing” simply means reporting the employer’s action. The party to whom the information is disclosed can be a supervisor, meaning anyone in the chain of command stemming from the employee’s position or rank to the top position of that particular employer, such as the department head, director of human resources, or even the president or CEO of the employing business or government. Supervisor is any individual who has the authority to direct and control the work performance of the employee, to take corrective action over the employee’s complaint, or who has been designated by the employer as per the notice requirements of CEPA.

Provides information to or testifies before

This means that an employee cannot be retaliated against for providing information, such as a witness statement or for testifying before a public body. A public body has been defined as United States or a state legislature; local government; federal, state, or local court; any jury; any regulatory, administrative or public agency or authority; any law enforcement agency, prosecutorial office, or police officer; and any department of any branch of government.

Objects to, or refuses to participate

This provision of CEPA protects the employee who will not follow a directive of the employer which the employee reasonably believes is illegal or contrary to a public policy. The policy the employee is relying upon must be clear, meaning one where the activity primarily hurts the public. This provision protects the whistleblower who attempts to protect the public from harm. This includes employer actions that would be detrimental to the environment, public health or safety, would be otherwise criminal or fraudulent, or in violation of a law or regulation. The employee’s belief only must be reasonable in objecting to or refusing the employer’s directive.

Internal Complaint Exhaustion

To enjoy the protection of CEPA, an employee should, in normal circumstances, advise a superior in writing to give the superior a reasonable opportunity to correct the problem. This is not required in emergency situations or when the practice in question is already known to a supervisor.

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