Whistleblowing and Retaliation in New Jersey

Guest Column By:

By Ivo Becica, Esq.
Associate, Obermayer Rebmann Maxwell & Hippell LLP

New Jersey’s Conscientious Employee Protection Act (“CEPA”) protects “whistleblowers” from workplace retaliation.  Because CEPA favors employees, and applies to all New Jersey employers regardless of size, all organizations with New Jersey employees should be familiar with it.

Who is a Whistleblower under CEPA?

Whistleblowers are commonly thought of as employees who publicly expose fraud or wrongdoing.  However, CEPA also protects employees who raise objections within their organization, or refuse to participate in activities that they reasonably believe are illegal, fraudulent, criminal, or against public policy.  In order to be protected under CEPA, employees need not show that the employer actually violated any law or policy—a good faith belief that wrongdoing has occurred is sufficient.

Employees who complain about or object to misconduct of co-workers are protected by CEPA—even if the wrongdoing is not in furtherance of the business.  There is no exception for employees who are required as part of their jobs to monitor or report misconduct.

What is Retaliation under CEPA?

While the classic example of unlawful whistleblower retaliation is firing a complaining employee, retaliation under CEPA also includes other adverse employment actions.  Retaliation can include harassment or exclusion by supervisors or co-workers, if severe enough to impact the terms and conditions of employment.  Employees must show a connection between their whistleblowing and the adverse action, but this can be proven circumstantially (most commonly, if an adverse action follows shortly after a complaint).

Are there Notice Requirements?

Employers with ten (10) or more employees must annually post and distribute notices informing employees of their rights under CEPA, and identifying a contact person to receive complaints.  A form complying with this requirement is available on the NJ Department of Labor website.

How do we Protect our Organization?

New Jersey employers should include a whistleblower policy in their employee handbook that notifies employees of complaint procedures, and prohibits retaliation for raising concerns in good faith.  Supervisors and employees should be trained to keep complaints confidential and to not retaliate against whistleblowers.  Before terminating or take other adverse action against an employee who may be protected, employers should consult employment counsel to reduce the risk of liability under CEPA.