The Conscientious Employee Protection Act (CEPA) is a New Jersey law prohibiting employers from taking retaliatory actions against employees who report or refuse to engage in unlawful activities. It is New Jersey's employment law on “whistleblowing.” The law is intended to encourage employees to come forward when they believe their employer is engaging in illegal activities, e.g., fraud. CEPA is codified in Section 34:19-1, et. seq. of the New Jersey Code.
Definitions of employer and employee according to CEPA
CEPA defines an employer as an individual, partnership, association or group of persons acting directly or indirectly on behalf or in the interest of an employer. The definition also includes all state, county, and municipal governments, school districts, commissions, authorities, and boards.
An employee is any individual who performs services for and under the direction of an employer for wages or other compensation.
What are New Jersey employers required to do under CEPA?
Employers must designate a contact person for employees who believe their rights have been violated under CEPA. Employers are also required to conspicuously display a notice about CEPA violations and what to do if you feel that your rights were violated.
What are New Jersey employers prohibited from doing under CEPA?
An employer accused by an employee cannot retaliate or engage in retaliatory harassment against or cause negative workplace conditions for the employee who “reasonably believes” the employer's activities were unlawful and reported it. An employee is entitled to protection pursuant to CEPA regardless if a true finding of unlawful conduct by the employer is found.
Employers also cannot try to disregard CEPA-established duties by hiring "independent contractors" who should legally be classified as employees.
Employers must not engage in retaliatory harassment against employees who have engaged in whistleblowing activities. Retaliatory harassment includes conduct by an employer that is hostile, intimidating or abusive. For example, if an employer makes negative comments about the employee or discusses the employee negatively with other employees, this could be considered retaliatory harassment.
If retaliatory harassment is serious, it can be considered a form of constructive termination. Constructive termination occurs when an employer makes the conditions of employment so unbearable that an employee can no longer continue working at the job.
Changes in Employment Conditions
Employers must not fire, terminate, demote, or change conditions of employees who report what they reasonably believe to be a violation of the law. Taking away benefits that the employee previously enjoyed may also qualify as a negative action under CEPA. Assigning an employee to unpleasant work duties that the employee had not been previously assigned to or transferring the employee to an undesirable shift can also constitute a negative action under CEPA.
Special rules apply to workers in the healthcare industry. If an employee is a healthcare worker, an employer may not take negative actions against an employee who reports what the employee believes is improper patient care.
Proving Retaliatory Conduct
Employees must demonstrate a connection between the retaliatory conduct by the employer and the protected acts undertaken by the employee. If an employee was fired based on clearly documented performance reasons -- like sleeping on the job or missing work without providing notice to the employer -- the employer may have a defense to violations of CEPA. However, an employer may not fire an employee and allege that the employee's performance was deficient when the real reason for termination was a protected activity under CEPA.
What is considered protected activity in New Jersey under CEPA?
Employees may refuse to participate in activities they reasonably believe are unlawful or a violation of a clear mandate regarding public policy. They are protected from reporting or threatening to report unlawful activities by their employer.
Providing Information to a Government Agency
Employees are protected from negative actions by their employer after the employee has provided information to a governmental agency or testified before a legislative body. This includes providing information to a governmental body or agency conducting a hearing or investigation. Participants in hearings must provide sworn testimony. CEPA is designed to create a safe environment for workers to tell the truth about their employment conditions without fear of negative consequences at their job.
Refusal to Participate in Unlawful Activities
Employees who refuse to participate in activities, policies, or practices the employee believes are unlawful, including fraudulent activities, are protected by CEPA. Employees may disclose information about fraudulent practices to any shareholder or co-owner without fear of retaliation.
Employees may also refuse to engage in activities that constitute a clear violation of public policy concerning health, safety, welfare or activities that are incompatible with a clear mandate regarding protection of the environment. For example, if an employee refuses to engage in unlawful waste disposal, any negative actions taken by an employer may constitute a violation of CEPA.
Filing a Lawsuit in New Jersey Pursuant to CEPA
Employees who have experienced a negative change in the conditions of their employment may be able to recover damages pursuant to CEPA for:
- mental distress,
- lost wages,
- lost benefits, and in some cases,
- punitive damages.
Punitive damages are awarded in egregious cases to punish the wrongdoer and discourage others from repeating similar conduct.
Employees may also be able to pursue equitable remedies, like reinstatement to the former position where the employee was demoted or fired as a result of the whistleblowing.
An employee has the burden of proving that he acted upon a reasonable belief that their employer's conduct was unlawful. The employee does not need to prove that the employee knew the specific law that the employer was violating, only that the belief of the violation was reasonable. Whether or not the belief was reasonable depends on the facts of the situation.
Statute of Limitations
If you feel that you have experienced a violation of the Conscientious Employee Protection Act, it is important to contact an attorney right away. There are strict time limits for reporting violations and filing a lawsuit. Failure to take action in a timely manner can result in your case being dismissed.
It is important to have an experienced employment law attorney on your side when you are alleging CEPA violations to advise you of your rights and the procedural requirements of filing a CEPA lawsuit. An attorney may also be able to advise you of your rights pursuant to federal laws regarding hostile work environments.
CEPA Litigation Attorneys in New Jersey
If you have questions about the Conscientious Employee Protection Act in New Jersey (CEPA), contact an experienced attorney right away. Contact Kim & Feliz, LLC by filling out our online form or call us at (201) 585-2250.