SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Posted in retaliation

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.

IMG_3809-300x169
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.

IMG_3469-300x169
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 jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment.  Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

Employment Lawyers
The incident concerning the alleged sexual assault took place on October 20, 2013.   Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day.  Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind.  Ms. Scott testified that Mr. Pignatello  stated to her, “No, I’m not following you.  I offer full services and I’m willing to please.”  She alleges he then pumped and grinded into her buttocks.  Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok?  What did Pat do? Do you want me to call the police?”  Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

In the midst of increased public scrutiny concerning allegations of a toxic work environment, NBC has announced that it will not seek to enforce any non-disclosure agreements (“NDA”) against any former or current NBC employee who wishes to speak openly about incidents of sexual harassment.  The announcement comes in response to recent reports that several former NBC employees are unwilling to speak publicly about their experiences of sexual harassment at NBC in fear that they would be breaching the NDA’s if they did so. While NBC maintains that the NDA agreements never prohibited employees from speaking out against sexual harassment, at least a few employees have been reported to believe differently.  The announcement should resolve any confusion of whether former or current NBC employees’ can speak freely about the NBC work environment. It also serves as a reminder to all employers of the significant legal risks associated with attempting to use NDA’s to keep employees silent about issues of workplace discrimination  


fullsizeoutput_44-300x169
The #Metoo movement has encouraged many victims of sexual harassment to openly and publicly discuss their experiences in working in a hostile work environment.  For far too long, victims of sexual harassment have remained silent and not hold the perpetrators responsible for the grave harms caused by their actions.  Many times, the decision to stay silent is voluntary. Victims would rather try to ignore what happened for fear that they will not be believed, their employer will not take any action, or even worse, suffer retaliation.  In fact, according to the report of the 2016 Task Force on the Study of Harassment in the Workplace, the least common response of a victim of harassment is to take some form of formal action, whether it be report the harassment internally or file a formal legal lawsuit.  In fact, approximately 75% of victims of sexual harassment will never talk to management, HR or a union representative about an incident of workplace sexual harassment.

Other victims of sexual harassment cannot speak freely about their experiences because they signed a written NDA contract with their former or current employer.  An NDA prohibiting an employee from discussing workplace sexual harassment is typically executed either when an employee starts his or her employment, or when the employment is separated.  When starting employment, many employers require the employee to sign employment agreements that include confidentiality of company trade secrets, proprietary information and other aspects of the employment that require confidentiality.  Some employers attempt to use these provisions to restrain current or former employees from disclosing incidents of workplace sexual harassment and deem them “confidential” under the NDA provision. While these confidentiality provisions in employment agreements are in most situations unenforceable as against public policy, many employees feel restrained by the provision and remain afraid to breach it.  Some employees are even afraid to speak to an employment attorney for advice and counsel concerning their rights under anti-discrimination laws. 

fullsizeoutput_42-300x169
The Third Circuit Court of Appeals has ruled in favor of a public employee who alleges she was terminated by her public employer for inquiring into a complaint that she had been illegally recorded during a conversation with a union leader.  In reversing the district court’s decision, the court reinforced the separation of a public employee’s speech in their capacity as a private citizen in comparison to what they say in their capacity as a public employee.  This case is a reminder that public employees do not waive their First Amendment rights by accepting public employment and have job protections when they engage in protected activity under the United States Constitution.  

In this case entitled Javitz v. County of Lucerne, the plaintiff, Donna Javitz’s was employed as the director of human resources for Lucerne County.  During her employment, Ms. Javitz’s alleges that she made a report to the district attorney that she had allegedly been illegally recorded when she met a union leader in her official capacity. The county manager told Javitz and the district attorney to drop the matter, but Javitz followed up with questions on the status of the investigation regarding the recording. Suddenly, her relationship with her employer became rocky and Javitz was abruptly terminated. Javitz claimed that her termination was in retaliation for reporting the alleged illegal recording to the district attorney. 

The county employer alleged that Javitz had been working within her capacity as a public employee when she was inquiring about the status of the investigation and therefore no First Amendment violation existed. The district court agreed and cited to the Lucerne County Code of Ethics as the source by which it found her conduct in reporting the illegal activity to be within her official capacity as a county employee. Because the action was within her duties as an employee, the District Court concluded that the report did not qualify as speech protected by the First Amendment. 

The New Jersey Supreme Court recently provided further clarification on what an employee must ‘know’ to be able to sustain a claim against their employer under the New Jersey whistleblower protection law, the Conscientious Employee Protection Act (CEPA). In July 2019, the court issued its opinion in the case Chiofalo v. State, finding that an employee’s whistleblower retaliation claim should not necessarily be dismissed because the employee did not identify the specific law that the employee believed their employer to have been violating. The court held that, where an employee held a reasonable belief that complained of conduct was criminal or fraudulent, that is enough to come within the broad remedial scope of the CEPA whistleblower protection statute. 

IMG_0501-300x169
The plaintiff in that case, Frank Chiofalo, was a Sergeant with the State Police when he allegedly refused to participate in activity that he alleged be believed to be criminal or fraudulent. Specifically, Sgt. Chiofalo alleged that he was directed by a supervisor to destroy a record from a fellow officer’s personnel file. The record in question was a “letter of appreciation” that memorialized a police escort that was provided to a civilian. This record was potentially damaging, as the escort in question was not officially sanctioned, violated policy, and led to an internal review by the State Police. Sgt. Chiofalo alleged that because he refused to destroy this record to protect the other officer, he was subjected to discipline when he was demoted and denied a promotion. Sgt. Chiofalo then filed suit, claiming that his rights were violated under the CEPA whistleblower protection law. 

The Appellate Division found that Sgt. Chiofalo’s CEPA claim had to be dismissed because he had failed to specifically identify a statute, regulation, or public policy that the conduct he complained of was or would have been in violation of. The New Jersey Supreme Court disagreed and reversed that aspect of the decision. The Court agreed with the Appellate Division that the plaintiff must have had a reasonable belief that the complained of conduct violated the law, that reasonable belief did not have to be specific or particularized. The Court reiterated language from prior precedent “that [courts] do not expect whistleblower employees to be lawyers on the spot.” Rather, they can rely on their perception and later, with the assistance of counsel, identify the specific statute, regulation, or public policy that the conduct was in violation of.

On March 18, 2019, Governor Murphy officially signed S-121 into law that makes any provision in an employment which waives any substantive or procedural right of an employee unenforceable as against New Jersey public policy.  Under the new law, New Jersey employers will no longer be able to conceal the underlying details of sexual harassment and other claims of discrimination through the use of non-disclosure or confidentiality provisions in settlement agreements.  The new Non-Disclosure law also protects employees from being retaliated against for not entering into any agreement or contract that requires them to waive their substantive or procedural rights.

The Non-Disclosure bill will apply to all workplace discrimination claims alleged or brought under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits workplace discrimination on the basis of protected traits such as gender, disability, race, national origin and other protected classes of people.  It also prohibits employers from retaliating against employees who oppose discrimination or participate in harassment investigations.  Finally, it makes employers responsible for the harm caused to employees who are forced to work in a hostile work environment.

The Non-Disclosure bill is being touted a significant win for New Jersey employees’ rights and the #MeToo movement.  The law was sponsored by Senators Loretta Weinberg and Nia Gill an Assembly members Valerie Vainieri Huttle, John F. McKeon and Jon M. Brammick.  The law will not be administered retroactively.  Instead, it will only apply to employment contracts that are entered into, renewed, modified or amended on or after the law’s March 18, 2019 effective date. This means any contract to arbitrate or settlement agreement requiring the underlying claims of lawsuit to be confidential signed before March 18, 2019 can still be enforced by an employer against an employee.

New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities.  The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large.  However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.

New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.

Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer.  By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities.  The state law applies to private and public employers and employees.  It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.

Contact Information