SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in CEPA

The Superior Court of New Jersey, Appellate Division, recently authored a significant ruling that reaffirmed and strengthened the resolve of New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”). In Halliday v. Bioreference Laboratories, Inc., a Texas based employee, Halliday, of a New Jersey Company, Bioreference Laboratories, Inc. (“BLI”), raised numerous complaints regarding her employer’s Houston, Texas laboratory being out of compliance with the Clinical Laboratory Improvement Amendments (“CLIA”) and thus in violation of federal law. Ms. Halliday was fired within a year of raising her complaints, leading her to file a CEPA claim against her former employer.

BLI moved for summary judgment arguing that Texas law, not New Jersey law, should apply. The trial court agreed with BLI, finding that Texas law governed the issue. Moreover, because Texas law governed the issue, and Texas lacks a whistleblower law in parity with CEPA, Ms. Halliday’s claim failed.  The trial court further noted that even if CEPA applied to the issue, Halliday failed to present evidence that her termination was connected to her complaints. As such, the trial court granted BLI’s motion for summary judgment. Ms. Halliday then appealed. On appeal, the Superior Court sided with Ms. Halliday, vacated the trial court’s ruling and remanded the issue back to the trial court.

The Superior Court’s holding emphasized the core ideas of CEPA as a “remedial legislation” that was created to advance an important social goal, namely “to encourage, not thwart, legitimate employee complaint.” Pursuant to this ideal, the Superior Court looked to the definitional language used in CEPA on the terms “employee” and “employer” and held definitively that, “[CEPA] does not limit the definition of employer to persons or entities located in New Jersey, and the definition of employee is not restricted to individuals performing services in New Jersey.” This landmark holding cements the idea that CEPA is an inclusive legislation that is not fully limited to the borders of New Jersey.

The Appellate Division of the Superior Court of New Jersey has reversed a trial judge’s the dismissal of a whistleblower lawsuit brought by a former licensed nurse of Rutgers University School of Biomedical and Health Sciences, which used to be the University of Medicine and Dentistry of New Jersey (Rutgers). This court’s decision will revive the ex-nurses lawsuit and allow her claims of whistleblower retaliation under New Jersey’s Conscientious Employee Protection Act to proceed to trial.

IMG_3469-300x169Ms. Herbe worked as a licensed nurse at Rutgers since 2009 and had recently been promoted to the position of Clinical Nurse Coordinator for the Child Health Program. Over the course of three days, when she and two coworkers along with their supervisor were assigned to audit patient charts, the supervisor admittedly abandoned that task and brought one of Ms. Herbe’s coworkers along with her to help her fill out an application to Rutgers’ graduate nursing program. Ms. Herbe reported her supervisor for theft of time, among other rule violations, via an anonymous employee hotline. The Business Manager for the Child Health Program investigated Ms. Herbe’s anonymous allegations and found them to be credible. Both the supervisor and coworker were disciplined, including loss of leave benefit time and removal of the supervisor’s application from consideration by the graduate program.

Immediately after they were disciplined, Ms. Herbe’s supervisor began to harass her by making comments about her being “a mole”, meeting with Ms. Herbe’s team without her, asking them for “dirt on her”, changing the reporting requirements that Ms. Herbe had put in place for her team, yelling at her in front of new employees and generally trying to undermine her authority. The supervisor also wrote her up for leaving work early and other infractions that Ms. Herbe claims never occurred. Ms. Herbe also began receiving poor performance evaluations for the first time in her four years working at Rutgers.

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

IMG_0999-300x169Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

As those of us who are Rutgers football fans know, finding a winning head coach can be very difficult.  Unfortunately, the Rutgers football head coach position has become available three times in the past eight years, which means three expensive and time consuming job searches. While there are always a large pool of candidates who would love the opportunity to be the head coach of Rutgers football, there are always some highly qualified candidates who choose to interview for reasons other than actually wanting the job.  One example is to gain leverage in securing a better contract from their current coaching position.  Another example, is when an unemployed coach who is still owed money under a term contract interviews for a job to prove they are mitigating their damages.

View-recent-photos-300x179The issue of mitigation of damages has been placed front and center in connection with a federal lawsuit former Arkansas head coach, Bret Bielema has filed against his former employer.  According to news reports, Bielema is being accused by his former for failing to mitigate when removing himself as a candidate for the Rutgers position during the search when it became likely Rutgers would be hiring Schiano.

Bielema sued the Arkansas Razorback Foundation for breach of contract by alleging that the school has failed to pay him $7 million in salary he was owed after his no-cause firing. Arkansas claims, however, that Bielema failed to mitigate his damages for failing to use reasonable efforts to secure a comparable coaching job and instead accepting a much lower-paying job in the NFL. The lawsuit, currently pending in federal court, presents an interesting legal issue that many plaintiffs in employment cases are faced with in litigating their claims of wrongful termination or breach of contract. Did Bielema mitigate the damages he claims to have sustained by his termination.

Many of us have heard of employee whistleblowers who go public with their employer’s egregious wrongdoings and suffer job loss or other retaliation for doing so. Both the federal government and the State of New Jersey offer protections to these conscientious employees.  For example, a federal law called the Whistleblower Protection Act of 1989 protects employees who disclose evidence of illegal or improper governmental activities. In New Jersey, we have enacted the Conscientious Employee Protection Act, which is viewed as one of the furthest reaching whistleblower laws in the country. Whistleblower laws such as these were enacted to assure that employees have protections when they do the right thing and oppose unlawful activity of their employer.  We, as a society, belief that employers and the government must play within the rules to protect people from being harmed from dangerous situations that can be caused by unlawful conduct.

IMG_3937-300x169There is perhaps no better example of the importance that whistleblowers can play in stopping governmental behavior that can cause harm to people than the allegations that Dr. Rick Bright has made against the government concerning its COVID-19 response. Dr. Bright was recently ousted from his prominent position as Director of the Biomedical Advanced Research and Development Authority (BARDA) for what he alleges was in retaliation for disclosing certain violations of law, gross mismanagement and waste of funds, abuse of authority and substantial and specific danger to public health and safety of the government in response to the Covid-19 pandemic.

Dr. Rick Bright recently began making headlines when he went public with his Complaint alleging Whistleblower Retaliation filed with the United States Office of Special Counsel. In the lengthy filing, Dr. Bright alleges that he was fired from his position within the Department of Health and Human Services (HHS) after he refused to spend money on unproven and potentially dangerous drugs that the White House was touting as promising treatments for Covid-19, and he resisted pressure to put in place a national program geared toward expanding public access to those drugs.

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments.  Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

IMG_3937-300x169The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States.  The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional.  A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law.  While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements.  Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

An employee may have a claim for whistle-blower retaliation under New Jersey state law if their employer takes adverse employment action against him or her for complaining directly to the employer or or reporting violations of New Jersey Executive Order 107 to a governmental agency.  Executive Order 107 was signed by Governor Murphy on March 21, 2020 in furtherance of concerted efforts to stop the spread of COVID-19.  Since its passing, there have been many news stories of New Jersey employees reporting that employers are conducting business as usual and in violation of their legal obligations under Executive Order 107. Employers who retaliate against their employees for “blowing-the-whistle” on violations of Executive Order 107 may also find themselves subjected to liability under the New Jersey Conscientious Employee Protection Act.

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The New Jersey Conscientious Employee Protection Act is considered one of the furthest reaching anti-whistleblower statutes in the country.  New Jersey’s whistle-blower protection law makes it unlawful for an employer to take adverse employment action (including, but not limited, to termination) against an employee for engaging in protected activity that is covered by the statute. There are many forms of protected activity recognized under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34-19-3.  For example, an employee who discloses or threatens to disclose to a supervisor or public body practices or acts of the employer that he or she reasonably believes to be in violation of a law, rule or regulation promulgated pursuant to the law is engaging in protected activity under the statute.  Protected activity can also include objecting to or refusing to participate in any activity, policy or practice that the employee reasonably believes 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(c)(3).

The clear stated purpose of Executive Order 107 is to limit the spread and mitigate the impact of COVID-19.  In order accomplish the objections of the executive order, Governor Murphy ordered specific directives upon employers concerning how they must conduct their business operations during the coronavirus pandemic.  Among other things, Executive Order 107 directs the temporary closure of non-essential retail businesses.  It also mandates non-retail businesses to accommodate their workforce for telework or work-from-home arrangements. The term “telework” is defined in the order as “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.”  The order further states that in situations in which employees cannot perform their job functions via telework or work-from home arrangements, the employer should make best efforts to reduce staff on-site to the minimal number of workers necessary to ensure the continuation of essential business operations.

An employee is protected from retaliation from his or her employer when he or she engages in protected activity under the New Jersey Law Against Discrimination.  But what constitutes protected activity?  Is any complaint covered?  Or does the employee complaint have to one that the complained of conduct violate the law?  The Supreme Court of New Jersey answered these questions concerning the standard in a 2013 decision in the case of Battaglia v. United Parcel Service Inc., in holding that an employee engages in protected activity when employee’s complaint is reasonable and made with a good faith belief that the complained of conduct violates the LAD.

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The Battaglia decision involved a case of sexual harassment retaliation.  Michael Battaglia had been employed with UPS since 1985, when he began as a driver and worked his way up the ranks. In 2001, Battaglia became the division manager of UPS’s South Division and he began supervising Wayne DeCraine. During this time, Battaglia became aware of DeCraine’s derogatory remarks about women, including sexually inappropriate comments about female employees at UPS. Battaglia took steps at that time, in accordance with UPS policy, to address DeCraine’s conduct and behavior. For unrelated reasons, thereafter, Battaglia was moved through several other departments at UPS and ultimately in 2004, returned to working with DeCraine – now with DeCraine supervising Battaglia as a division manager.

After some time, DeCraine began making what Plaintiff perceived to be a series of inappropriate sexual comments. While the comments were only made in the presence of male employees, the comments were about other female employees. Battaglia asserts that he spoke with DeCraine each time he made a comment and further met with their supervisor who had also heard these remarks.

A New Jersey Appellate Division has denied an appeal of a whistleblower verdict in favor of a state employee against her former employer the State Department of Corrections.  The plaintiff, Meg Yatauro, brought her claim under the New Jersey whistleblower law known as the Conscientious Employee Protection Act, alleging that she suffered adverse employment action as a result of objecting to several improprieties over the period of years concerning the misuse of public funds.  After a lengthy trial, the jury agreed that Ms. Yatauro was retaliated for her whistleblowing activities and awarded her $1,000,000 in damages for emotional distress and economic losses.

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In this case entitled Meg Yatauro v. State of New Jersey, Gary M. Lanigan, Judy Lang, Mark Farsi, the plaintiff, Ms. Yatauro, began working for the Department of Corrections in civil service positions in 1984.  After nineteen years, Ms. Yatauro was promoted to the assistant superintendent position at Northern State Prison.  She was later transferred to Mid-State Correctional Facility, which she remained for two years, before being transferred to Central Reception and Assignment Facility, where she was promoted to associate administrator.  In 2012, Ms. Yatauro was transferred to the Albert C. Wagner Youth Correction Facility in an administrator position, where she alleged the whistleblowing and resulting retaliation took place.

The judge permitted Ms. Yatauro to present evidence of several whistleblowing events to the jury during the trial.  First, Plaintiff complained to her supervisor concerning the Chief of the Special Investigations Division having his Trenton office painted using funds out of the correction facilities budget at a time it had its own urgent need for repairs.  Another complaint was aslo related to an issue of misuse of funds involving another supervisor made unauthorized credit card purchases and permitted maintenance staff to work overtime without Ms. Yatauro’s approval.

The New Jersey Transgender Equality Task Force issued its report and recommendations on November 20, 2019 to address discrimination against transgender individuals of New Jersey.  The New Jersey Transgender Equality Task Force, was established by Governor Murphy and its Senate and Assembly sponsors in July, 2018, convened in March, 2019 and has worked for the past six month studying a wide ranging issues of discrimination facing transgender persons, including health care, long term care, education, higher education, housing, employment and criminal justice.  New Jersey’s creation of the Transgender Equality Task Force is the first in the nation.

IMG_92AFD566C527-1-300x166The task force was chaired by Aaron Potenza who is the Policy and Program Manager for the New Jersey Coalition Against Sexual Assault. Mr. Potenza was joined by representatives from nine state agencies along with other experts, lawyers and health care professionals.   The task force’s directive was to assess the legal and societal barriers to equality for transgender individuals in the State and to make recommendations to ensure equality and improve the lives of transgender individuals.  The task force’s report, entitled “Addressing Discrimination Against Transgender New Jerseyans”, includes various recommendations to address LGBTQ discrimination, which include the following:

  • the Governor’s Office announcing a campaign to increase sexual orientation and gender identity data collection throughout New Jersey state agencies;
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