New Jersey Whistleblower Claims
When an employer violates the law or skirts the rules and legal obligations, what is the legal obligation of the employee who becomes aware of such conduct? Do they report it internally? To an outside agency? Is that employee protected from retaliation? Without accountability, an employer has no incentive to discontinue their unsafe or illegal practices. This is where whistleblowers play an important role. Employees who speak out about impropriety by their employer enjoy broad protection from retaliation such as termination, demotion, or harassment. Whistleblowers can also receive financial rewards under some state and federal statutes if their allegations are later deemed valid.
Employees put themselves at great risk when acting as a whistleblower. From our offices in Red Bank, NJ, and Marlton, NJ, McOmber McOmber & Luber, P.C. helps employees report the crimes their employer commits while aggressively protecting the right of whistleblowers in New Jersey.
Whistleblower Protections Under the New Jersey Conscientious Employee Protection Act (CEPA)
The New Jersey Conscientious Employee Protection Act (CEPA) protects employees who come forward to report illegal and fraudulent activities their employer commits. CEPA is frequently referred to as New Jersey’s “Whistleblower Act” and prohibits employers from retaliating against employees who report such activity. Under CEPA, it is illegal to retaliate against employees who:
- Informs a supervisor or the public about an illegal activity, policy, or practice.
- Provides information or testifies during an investigation, hearing, or inquiry involving the employer.
- Provides information that the employer deceived or misrepresented a shareholder, client, investor, or patient.
- Provides information about an activity on behalf of the employer that they believe to be illegal.
- Objects to, or refuses to participate in, an activity, policy, or practice that they believe is illegal or against the best interest of public health or safety.
When a suspected violation does not involve a danger to the workforce or public at large, such as failure to pay overtime or the state-mandated minimum wage, CEPA requires that the employee first bring their concerns to the attention of a supervisor. If a supervisor takes no action, the employee may notify the relevant agency. CEPA – which applies to companies with a workforce of 10 or more – ensures that the employee may not be subject to any adverse employment action in connection with the reporting of the violation.
CEPA Claims For Refusing Dangerous, Illegal Job Orders
New Jersey employees can invoke CEPA when an employer directs them to engage in a dangerous activity. Workers always have a right to refuse illegal unsafe job assignments. Moreover, even when what an employee has been asked to do is legal, the employee may still refuse if carrying out the order would jeopardize public safety.
The Occupational Safety Health Administration (OSHA) also has the authority to prevent retaliation against workers who shed light on violations of numerous federal statutes, including the Solid Waste Disposal Act, the Safe Drinking Water Act, the Clean Air Act, and the Asbestos Hazard Emergency Response Act. The Occupational Safety Health (OSH) Act prohibits employers from punishing whistleblowers, so long as an employee files a complaint within 30 days of the punishment. Additionally, as with CEPA, the OSH Act provides employees with the ability to refuse an unsafe job assignment, as long as they have made their concerns known to a supervisor and the supervisor fails to mitigate the danger.
New Jersey Qui Tam Claims Under the False Claim Act
If an individual has evidence of fraudulent activity against the United States government, he or she may decide to come forward as a whistleblower with that evidence and file a qui tam lawsuit under the federal False Claims Act. As with CEPA whistleblower claims, employees who follow qui tam claims are protected against retaliation. Violations under the False Claims Act include, but are not limited to:
- Presenting a claim for payment to the federal government knowing it is false or fraudulent.
- Attempting to get a claim paid by the federal government using a false record or statement.
- Conspiring with other individuals to get the federal government to pay for a false or fraudulent claim.
- Intentionally using false records or statements to avoid satisfying a financial obligation or transmit property to the federal government.
- Overcharging for goods and services provided by government contracts.
- Knowingly selling products that are defective or dangerous.
- Marketing drugs for uses that have not been approved by the FDA.
Although employees incur great risk when acting as a whistleblower, they stand to gain financially from their honesty. An employer faces a civil penalty of $5,000 to $10,000 for each violation of the False Claim Act, while the qui tam plaintiff who initiated the action is entitled to 15 to 30 percent of that penalty – regardless of whether the sum is paid by court order or via settlement. Additionally, a prevailing party in a qui tam case who suffered retaliation in the form of demotion or termination is entitled not only to job reinstatement but also an award of double back pay.
Retaliation For Employment Discrimination
The New Jersey Law Against Discrimination (NJLAD) protects employees against employment discrimination based on certain protected classes, including pregnancy discrimination, sexual harassment in the workplace, age discrimination, race discrimination, and more. Employees who feel they have been discriminated against in the workplace can file a claim with the U.S. Equal Employment Opportunity Commission (EEOC).
As with any other whistleblower claim, it is illegal for your employer to retaliate against an employee who complains about workplace harassment or discrimination, or files a claim with the EEOC.
How Do You Prove Retaliation at Work?
Whistleblower retaliation can take many forms, including:
- Job transfers
If you can demonstrate that your employer took any of these actions as a result of you speaking up or reporting an illegal activity, you may have a retaliation case and should speak to a New Jersey employment lawyer as soon as possible to discuss your options.
Can a Whistleblower Remain Anonymous in NJ?
Many employees want to do the right thing by coming forward about an illegal action by their employer, but have concerns about confidentiality. Many whistleblowers want to know if they can remain anonymous in New Jersey. In most cases, an employee who makes an anonymous complaint will not be protected by CEPA because they did not first bring the matter to their supervisor’s attention. This is why employee protection and anti-retaliation laws are so important, and why it is critical to contact an experienced New Jersey whistleblowing and retaliation lawyer to discuss your options before moving forward.
If you have reason to believe your employer has violated the law, or you have been the victim of retaliation for speaking up, McOmber McOmber & Luber can help you understand your rights and options.