cepa, pierce, and lad presentation for: legal services of new jersey 100 metroplex drive at...

CEPA, CEPA, PIERCEPIERCE, and LAD, and LAD

Presentation for:Presentation for: Legal Services of New Jersey Legal Services of New Jersey

100 Metroplex Drive at Plainfield Avenue 100 Metroplex Drive at Plainfield Avenue Edison, NJ 08817Edison, NJ 08817

January 21, 2008January 21, 2008

Ty Hyderally, Esq.Ty Hyderally, Esq.Law Offices of Ty Hyderally, PCLaw Offices of Ty Hyderally, PC

96 Park Street96 Park StreetMontclair, New Jersey 07042Montclair, New Jersey 07042phone (973) 509-0050 x118phone (973) 509-0050 x118

facsimile (973) 509-2003facsimile (973) [email protected]

www.www.employmentlit.com

DISCUSSION TOPICSDISCUSSION TOPICS1 RETALIATION CLAIMS1 RETALIATION CLAIMS

1.1. The Conscientious Employee Protection Act, NJSA The Conscientious Employee Protection Act, NJSA 34:19-1, et seq34:19-1, et seq

a. The Elements of a CEPA actiona. The Elements of a CEPA actionb. Who is covered by CEPA?b. Who is covered by CEPA?c. Defining an adverse actionc. Defining an adverse actiond. What constitutes a violation of public policyd. What constitutes a violation of public policy

i. The Constitution can be the source of a i. The Constitution can be the source of a violationviolation ii. A Pierce violationii. A Pierce violation

iii. The public interest is at issueiii. The public interest is at issueiv. iv. A summary of what constitutes

public policye. Reasonable belief of violation e. Reasonable belief of violation

2. Common Law Retaliation 2. Common Law Retaliation 3. Statutory Claims3. Statutory Claims4. 42 U.S.C. §19834. 42 U.S.C. §19835. New Jersey Civil Acts Act, N.J.S.A.10:6-1, 5. New Jersey Civil Acts Act, N.J.S.A.10:6-1, et seqet seq. .

2. CEPA vs. PIERCE – A COMPARISON2. CEPA vs. PIERCE – A COMPARISON 1. Waiver 1. Waiver 2 Differences between Pierce and CEPA claims 2 Differences between Pierce and CEPA claims 3. No waiver of claims requiring different elements3. No waiver of claims requiring different elements

DISCUSSION TOPICS DISCUSSION TOPICS (cont’d).(cont’d). 3. Sexual Harrasment 3. Sexual Harrasment

1. The Basic Principles1. The Basic Principles

2. Forms of Harassment2. Forms of Harassment

3. Legal Theories3. Legal Theories

4. What to do when you encounter it4. What to do when you encounter it

I. RETALIATION CLAIMSI. RETALIATION CLAIMSThe Conscientious Employee Protection Act, NJSA 34:19-1, The Conscientious Employee Protection Act, NJSA 34:19-1, et et

seq.seq.a. The Elements of a CEPA actiona. The Elements of a CEPA action

The Conscientious Employee Protection Act, The Conscientious Employee Protection Act, NJSA 34:19-1, NJSA 34:19-1, et seq. et seq. (“CEPA”) is a powerful (“CEPA”) is a powerful statute, enacted almost 20 years ago, in the statute, enacted almost 20 years ago, in the State of New Jersey that protects employees who State of New Jersey that protects employees who are subjected to adverse employment actions are subjected to adverse employment actions based on taking part in protected whistleblower based on taking part in protected whistleblower activity.activity.

CEPA is a specific statute that contains CEPA is a specific statute that contains highly scrutinized criteria that must exist for an highly scrutinized criteria that must exist for an employee to be successful in presenting a employee to be successful in presenting a whistleblower claim. The statute includes the whistleblower claim. The statute includes the following elements:following elements:

a. Elements of CEPA Action (cont’d)a. Elements of CEPA Action (cont’d) An employer shall not take any retaliatory adverse An employer shall not take any retaliatory adverse

action against an employee because the employee does action against an employee because the employee does any of the following:any of the following:

a. Discloses, or threatens to disclose to a a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation (1) is in violation of a law, or a rule or regulation promulgated pursuant to law,promulgated pursuant to law, including any violation involving including any violation involving deception of, or misrepresentation to, any shareholder, investor, deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entitypensioner of the employer or any governmental entity, or, in the , or, in the case of an employee who is a licensed or certified health care case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of professional, reasonably believes constitutes improper quality of patient care; orpatient care; or

(2) is fraudulent or criminal, (2) is fraudulent or criminal, including any activity, including any activity, policy or practice of deception or misrepresentation which the policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entityretiree or pensioner of the employer or any governmental entity;;

a. Elements of CEPA Action a. Elements of CEPA Action (cont’d)(cont’d)

b. Provides information to, or testifies before, any public b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with pursuant to law by the employer, or another employer, with whom there is a business relationship, whom there is a business relationship, including any including any violation involving deception of, or misrepresentation to, violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employee, former employee, retiree or pensioner of the employer or any governmental entityemployer or any governmental entity, or, in the case of an , or, in the case of an employee who is a licensed or certified health care employee who is a licensed or certified health care professional, provides information to, or testifies before, professional, provides information to, or testifies before, any public body conducting an investigation, hearing or any public body conducting an investigation, hearing or inquiry into the quality of patient care; orinquiry into the quality of patient care; or

a. Elements of CEPA Action a. Elements of CEPA Action (cont’d)(cont’d)

c. Objects to, or refuses to participate in any activity, policy or c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, promulgated pursuant to law, including any violation involving including any violation involving deception of, or misrepresentation to, any shareholder, investor, deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entitypensioner of the employer or any governmental entity, or, if the , or, if the employee is a licensed or certified health care professional, employee is a licensed or certified health care professional, constitutes improper quality of patient care;constitutes improper quality of patient care;

(2) is fraudulent or criminal,(2) is fraudulent or criminal, including any activity, including any activity, policy or practice of deception or misrepresentation which the policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entityretiree or pensioner of the employer or any governmental entity; ; oror

(3) is incompatible with a clear mandate of public (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection policy concerning the public health, safety or welfare or protection of the environment.of the environment.

b. Who is covered by CEPA?b. Who is covered by CEPA?

Prior to the very recent case of Prior to the very recent case of D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (N.J. 2007), in most cases, independent contractors, were , in most cases, independent contractors, were not covered under CEPA similar to the LAD. not covered under CEPA similar to the LAD.

The Appellate Division expanded CEPA’s The Appellate Division expanded CEPA’s coverage to include not only common law coverage to include not only common law employees, but also many independent employees, but also many independent contractors. contractors.

b. Who is covered by CEPA? b. Who is covered by CEPA? (cont’d)(cont’d)

The Court held that the definition of The Court held that the definition of “employee” under CEPA is broader than the “employee” under CEPA is broader than the definition under the LAD, and rejected the definition under the LAD, and rejected the analysis set forth in analysis set forth in Pukowsky v. CarusoPukowsky v. Caruso, 312 , 312 N.J.Super. 171, 711 A.2d 398 (App.Div.1998)N.J.Super. 171, 711 A.2d 398 (App.Div.1998)

The Court set forth a broad new test for The Court set forth a broad new test for determining whether a person is to be determining whether a person is to be considered an “employee” for purposes of considered an “employee” for purposes of CEPA: CEPA:

b. Who is covered by CEPA? b. Who is covered by CEPA? (cont’d)(cont’d)

As a result, we hold that independent contractors are not As a result, we hold that independent contractors are not necessarily excluded and that only the following factors necessarily excluded and that only the following factors contained in Pukowsky, supra, 312 N.J.Super. at 182-83, 711 contained in Pukowsky, supra, 312 N.J.Super. at 182-83, 711 A.2d 398, have relevance:A.2d 398, have relevance: first (“the employer's right to control the means and manner of the first (“the employer's right to control the means and manner of the

worker's performance”);worker's performance”); second (“the kind of occupation-supervised or unsupervised”); second (“the kind of occupation-supervised or unsupervised”); fourth (“who furnishes the equipment and workplace”) and; fourth (“who furnishes the equipment and workplace”) and; seventh (“the manner of termination of the work relationship”) seventh (“the manner of termination of the work relationship”)

And we conclude that those factors provide an appropriate And we conclude that those factors provide an appropriate guide for identifying those workers who fit CEPA's definition guide for identifying those workers who fit CEPA's definition of “employee.”of “employee.”

Who is covered by CEPA? (cont’d)Who is covered by CEPA? (cont’d)

Our holding is particularly compelled by CEPA's Our holding is particularly compelled by CEPA's primary purpose, which is to encourage workers to primary purpose, which is to encourage workers to voice concerns about the unlawful activities of voice concerns about the unlawful activities of employers and co-workers. employers and co-workers.

CEPA exhibits no particular interest in regulating the CEPA exhibits no particular interest in regulating the terms of the employer-worker relationship, except to terms of the employer-worker relationship, except to preclude retaliation, when the worker acts in the preclude retaliation, when the worker acts in the interests of the health, safety and welfare of the interests of the health, safety and welfare of the public.public.

c. Defining an adverse actionc. Defining an adverse action There have been a plethora of recent There have been a plethora of recent

cases that define adverse actions in cases that define adverse actions in contradictory fashions. Like the analysis contradictory fashions. Like the analysis under the LAD, “adverse action” will often be under the LAD, “adverse action” will often be decided on a case by case basis. decided on a case by case basis.

CEPA defines adverse action as CEPA defines adverse action as discharge, suspension, demotion, or other discharge, suspension, demotion, or other adverse employment action taken against an adverse employment action taken against an employee in the terms and conditions of employee in the terms and conditions of employment. It is this third category that employment. It is this third category that lends to contradictory interpretation by the lends to contradictory interpretation by the courts.courts.

c. Defining an adverse c. Defining an adverse action (cont’d)action (cont’d)

The definition of adverse action was narrowly construed by Judge The definition of adverse action was narrowly construed by Judge Axelrad in the New Jersey Appellate Division in the case of Axelrad in the New Jersey Appellate Division in the case of Hancock v. Borough of OaklynHancock v. Borough of Oaklyn, 347 N.J.Super. 350, 360, 790 A.2d , 347 N.J.Super. 350, 360, 790 A.2d 186, 193 (App.Div.2002). 186, 193 (App.Div.2002).

In Hancock, the Court found that an adverse action was an action In Hancock, the Court found that an adverse action was an action that either impacted the employee's “compensation or rank” or an that either impacted the employee's “compensation or rank” or an action that is “analysis was followed in Borawski v. Henderson, action that is “analysis was followed in Borawski v. Henderson, 265 F. Supp. virtually equivalent to discharge” in order to give rise 265 F. Supp. virtually equivalent to discharge” in order to give rise to the level of a retaliatory action required for a CEPA claim. to the level of a retaliatory action required for a CEPA claim.

The court found that having to perform certain duties and go The court found that having to perform certain duties and go through disciplinary hearings, although “mildly unpleasant,” did not through disciplinary hearings, although “mildly unpleasant,” did not rise to the level of an adverse action. This 2d 475 where the New rise to the level of an adverse action. This 2d 475 where the New Jersey District Court found that the denial of phone use and a Jersey District Court found that the denial of phone use and a possible lengthy suspension did not constitute an adverse action. possible lengthy suspension did not constitute an adverse action.


Subsequent cases expanded CEPA’s Subsequent cases expanded CEPA’s scope to allow that an adverse action scope to allow that an adverse action could occur by looking at more than one could occur by looking at more than one discrete action. However, this still discrete action. However, this still allowed for ambiguity and inconsistent allowed for ambiguity and inconsistent results as to what actions rise to the level results as to what actions rise to the level of an adverse action.of an adverse action.

c. Defining an adverse action c. Defining an adverse action (cont’d)(cont’d) In a 2003 New Jersey Supreme Court In a 2003 New Jersey Supreme Court

case, the court ruled that adverse action case, the court ruled that adverse action may include many separate, but relatively may include many separate, but relatively minor, instances of behavior directed minor, instances of behavior directed against an employee that may not be against an employee that may not be actionable individually, but that combine actionable individually, but that combine to make up a pattern of retaliatory to make up a pattern of retaliatory conduct. conduct. Green v. Jersey City Bd. of Green v. Jersey City Bd. of Educ.Educ. ,177 N.J. 434, 448 (2003). ,177 N.J. 434, 448 (2003).


Similarly, in Similarly, in Guslavage v. City of ElizabethGuslavage v. City of Elizabeth, , 2004 WL 3089743, the court defined adverse 2004 WL 3089743, the court defined adverse action broadly. In this case, a sergeant, in the action broadly. In this case, a sergeant, in the Police Department, was transferred internally Police Department, was transferred internally to a lesser unit, after engaging in CEPA to a lesser unit, after engaging in CEPA protected activity. The court found that the protected activity. The court found that the transfer was an adverse actiontransfer was an adverse action..


In In Nardello v. Township of VoorheesNardello v. Township of Voorhees, 277 N.J. Super. , 277 N.J. Super. 428, the court found that a series of minor instances 428, the court found that a series of minor instances could constitute adverse action by considering the could constitute adverse action by considering the aggregate impact of each minor instance. aggregate impact of each minor instance.

See also See also Beasley v. Passaic CountyBeasley v. Passaic County, 377 N.J. Super. , 377 N.J. Super. 585 (App. Div. 2005) (“A pattern of conduct by an 585 (App. Div. 2005) (“A pattern of conduct by an employer that adversely affects an employee's terms employer that adversely affects an employee's terms and conditions of employment can qualify as retaliation and conditions of employment can qualify as retaliation under CEPA.”). under CEPA.”). See,See, Isetts v. Borough of RoselandIsetts v. Borough of Roseland, , 2005 WL 2334363 (Law Div. 2005), (comprehensive 2005 WL 2334363 (Law Div. 2005), (comprehensive analysis of adverse action in LAD and CEPA cases).analysis of adverse action in LAD and CEPA cases).

c. Defining an adverse actionc. Defining an adverse action

Thus, just when it appeared that the Courts Thus, just when it appeared that the Courts were providing a broad interpretation of what were providing a broad interpretation of what constitutes an adverse employment action, the constitutes an adverse employment action, the Appellate Division handed down a ruling that Appellate Division handed down a ruling that provided a narrow interpretation to what provided a narrow interpretation to what constituted an adverse employment action. constituted an adverse employment action. Klein v. University of Medicine and Dentistry of Klein v. University of Medicine and Dentistry of New JerseyNew Jersey, 377 N.J.Super. 28 (App. Div. , 377 N.J.Super. 28 (App. Div. 2005).2005).

c. Defining an adverse c. Defining an adverse action (contd.)action (contd.)

Klein v. University of Medicine and Dentistry of New JerseyKlein v. University of Medicine and Dentistry of New Jersey, , 377 N.J.Super. 28 (App. Div. 2005). 377 N.J.Super. 28 (App. Div. 2005).

In this case, Dr. Klein lost clinical privileges and had to be In this case, Dr. Klein lost clinical privileges and had to be supervised by another physician after engaging in CEPA supervised by another physician after engaging in CEPA protected activity. The court found that UMDNJ’s responses protected activity. The court found that UMDNJ’s responses were not severe enough to constitute an adverse were not severe enough to constitute an adverse employment action. employment action. See alsoSee also Yurick v. State of N.J.Yurick v. State of N.J. (inadequate funding did not constitute an adverse action).(inadequate funding did not constitute an adverse action).

Thus, the issue of what constitutes an adverse action is still Thus, the issue of what constitutes an adverse action is still one that must be examined closely to survive summary one that must be examined closely to survive summary judgment.judgment.

d. d. What constitutes a What constitutes a violation of public violation of public policypolicy

One method of asserting a CEPA claim, is to One method of asserting a CEPA claim, is to engage in whistleblowing activity of the engage in whistleblowing activity of the company engaging in activity that violates company engaging in activity that violates public policy. The question that is often public policy. The question that is often presented in these instances, is whether or presented in these instances, is whether or not the activity violates public policy. not the activity violates public policy.

Thus, the courts examine various instances Thus, the courts examine various instances to opine as to what constitutes a violation of to opine as to what constitutes a violation of public policy.public policy.

i. The Constitution can be the i. The Constitution can be the source of a violationsource of a violation

► New Jersey has found the Constitution to be such a source. New Jersey has found the Constitution to be such a source. Hennessey v. Coastal Eagle Point Oil Co.,Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 129 N.J. 81, 92, 93 (1992); (1992); also, see, e.g., also, see, e.g., Henningsen v. Bloomfield Motors, IncHenningsen v. Bloomfield Motors, Inc., ., 32 N.J. 358, 404, 161 A.2d 69 (1960) ("Public policy at a given 32 N.J. 358, 404, 161 A.2d 69 (1960) ("Public policy at a given time finds expression in the Constitution, the statutory law time finds expression in the Constitution, the statutory law and in judicial decisions.");and in judicial decisions.");

► Radwan v. Beecham Labs.Radwan v. Beecham Labs., 850 F.2d 147, 151-52 (3d , 850 F.2d 147, 151-52 (3d Cir.1988) (finding a clear mandate of public policy in New Cir.1988) (finding a clear mandate of public policy in New Jersey's constitutional right to collective bargaining, N.J. Const. Jersey's constitutional right to collective bargaining, N.J. Const. art. 1, ¶ 19); art. 1, ¶ 19);

► Zamboni v. StamlerZamboni v. Stamler, 847 F.2d 73, 83 (3d Cir.) (finding public , 847 F.2d 73, 83 (3d Cir.) (finding public policy in free-speech and--assembly clauses of United States policy in free-speech and--assembly clauses of United States and New Jersey Constitutions) and New Jersey Constitutions) cert. deniedcert. denied, 488 U.S. 899, 109 , 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); S.Ct. 245, 102 L.Ed.2d 233 (1988);

i. The Constitution can be the i. The Constitution can be the source of a violation (cont’d)source of a violation (cont’d)

► Wagenseller v. Scottsdale Memorial Hosp.Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. , 147 Ariz. 370, 710 P.2d 1025, 1033 (1985) (general statement 370, 710 P.2d 1025, 1033 (1985) (general statement including constitution as source of public policy); including constitution as source of public policy); Gantt v. Sentry Ins.Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal.Rptr.2d , 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 881, 824 P.2d 680, 687 (1992) (same); 874, 881, 824 P.2d 680, 687 (1992) (same);

► Parnar v. Americana Hotels, Inc.Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 , 65 Haw. 370, 652 P.2d 625, 631 (1982) (same); P.2d 625, 631 (1982) (same); Palmateer v. Palmateer v. International Harvester Co.International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. , 85 Ill.2d 124, 52 Ill.Dec. 13, 15, 421 N.E.2d 876, 878 (1988) (same) 13, 15, 421 N.E.2d 876, 878 (1988) (same) Boyle v. Boyle v. Vista Eyewear, Inc.Vista Eyewear, Inc., 700 S.W.2d 859, 871 , 700 S.W.2d 859, 871 (Mo.Ct.App.1985) (same); (Mo.Ct.App.1985) (same); Burk v. K- Mart Corp.Burk v. K- Mart Corp., 770 , 770 P.2d 24, 28 (Okla.1989) (same). P.2d 24, 28 (Okla.1989) (same).

ii. A Pierce violationii. A Pierce violation The New Jersey Supreme Court defined a The New Jersey Supreme Court defined a

common law retaliation cause of action in the seminal common law retaliation cause of action in the seminal case of case of Pierce v. Ortho Pharmaceutical Corp.Pierce v. Ortho Pharmaceutical Corp., 84 N.J. , 84 N.J. 58, 72 (1980). 58, 72 (1980).

In this case, the court ruled that an employee has a In this case, the court ruled that an employee has a cause of action for wrongful discharge when the cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public discharge is contrary to a clear mandate of public policy. The sources of public policy include policy. The sources of public policy include legislation; administrative rules, regulations or legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an a professional code of ethics may contain an expression of public policy. expression of public policy.

ii. A Pierce violation (contd)ii. A Pierce violation (contd)

However, not all such sources express a clear However, not all such sources express a clear mandate of public policy. For example, a code mandate of public policy. For example, a code of ethics designed to serve only the interests of of ethics designed to serve only the interests of a profession or an administrative regulation a profession or an administrative regulation concerned with technical matters probably concerned with technical matters probably would not be sufficient. would not be sufficient.

Absent legislation, the judiciary must define Absent legislation, the judiciary must define the cause of action in case-by-case the cause of action in case-by-case determinations. determinations.

iii. The Public interest iii. The Public interest is at issueis at issue The essence of a CEPA claim should revolve The essence of a CEPA claim should revolve

around an issue that touches the public and around an issue that touches the public and not just the individual plaintiff. not just the individual plaintiff. Mehlman v. Mehlman v. Mobil Oil Corp.Mobil Oil Corp., 153 N.J. 163, 187-88 (1998). , 153 N.J. 163, 187-88 (1998).

At its core, the legislative intent of CEPA is to At its core, the legislative intent of CEPA is to protect from retaliatory discharge, those protect from retaliatory discharge, those employees who, "believing that the public employees who, "believing that the public interest overrides the interest of the interest overrides the interest of the organization [they] serve[ ], publicly 'blow[ ] organization [they] serve[ ], publicly 'blow[ ] the whistle' [because] the organization is the whistle' [because] the organization is involved in corrupt, illegal, fraudulent or involved in corrupt, illegal, fraudulent or harmful activity." harmful activity." Ralph Nader et al., Ralph Nader et al., Whistleblowing: The Report of the Conference Whistleblowing: The Report of the Conference on Professional Responsibilityon Professional Responsibility (1972). (1972).

iii. The Public interest iii. The Public interest is at issue (cont’d)is at issue (cont’d) To discern such a violation, you should look To discern such a violation, you should look

generally to the federal and state generally to the federal and state constitutions, statutes, administrative rules constitutions, statutes, administrative rules and decisions, judicial decisions, and and decisions, judicial decisions, and professional codes of ethics to inform our professional codes of ethics to inform our determination whether specific corrupt, determination whether specific corrupt, illegal, fraudulent or harmful activity violates illegal, fraudulent or harmful activity violates a clear mandate of public policy.a clear mandate of public policy.

The guiding principle is that the offensive The guiding principle is that the offensive activity must pose a threat of public harm activity must pose a threat of public harm and not merely pose a private harm or a and not merely pose a private harm or a harm solely to the plaintiff.harm solely to the plaintiff.

The Public interest is at The Public interest is at issue (cont’d)issue (cont’d) In the recent case of In the recent case of Maw v. Advanced Clinical Maw v. Advanced Clinical

Communications, Inc.Communications, Inc., 179 N.J. 439, 444-45 , 179 N.J. 439, 444-45 (2004), the court took a hard look at whether (2004), the court took a hard look at whether being discharged for refusing to sign a restrictive being discharged for refusing to sign a restrictive covenant agreement could constitute a violation covenant agreement could constitute a violation of the law. of the law.

The court first found that restrictive covenant The court first found that restrictive covenant agreements are valid in New Jersey although they agreements are valid in New Jersey although they may be overreaching. The court specifically may be overreaching. The court specifically addressed the phrase, "clear mandate of public addressed the phrase, "clear mandate of public policy" as a section 3c(3) CEPA violation. policy" as a section 3c(3) CEPA violation.

The court found that a public policy expressed in The court found that a public policy expressed in the form of a statute, rule or regulation the form of a statute, rule or regulation promulgated pursuant to law, is not what was promulgated pursuant to law, is not what was meant under Section 3c(3). meant under Section 3c(3).

The Public interest is The Public interest is at issue (cont’d)at issue (cont’d) The Court found that this type of restrictive interpretation The Court found that this type of restrictive interpretation

would reduce would reduce N.J.S.A.N.J.S.A. 34:19-3c(1) (Section 3c(1)) to mere 34:19-3c(1) (Section 3c(1)) to mere surplusage, since it employs those legal precepts as a surplusage, since it employs those legal precepts as a frame of reference for evaluating an employer's conduct… frame of reference for evaluating an employer's conduct… A "clear mandate" of public policy suggests an analog to a A "clear mandate" of public policy suggests an analog to a constitutional provision, statute, and rule or regulation constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, under Section promulgated pursuant to law such that, under Section 3c(3), there should be a high degree of public certitude in 3c(3), there should be a high degree of public certitude in respect to acceptable versus unacceptable conduct… The respect to acceptable versus unacceptable conduct… The legislative approach vis-à-vis a "clear" mandate of public legislative approach vis-à-vis a "clear" mandate of public policy bespeaks a desire not to have CEPA actions devolve policy bespeaks a desire not to have CEPA actions devolve into arguments between employees and employers over into arguments between employees and employers over what is, and is not, correct public policy. what is, and is not, correct public policy.

Such an approach also fits with the legislative requirement Such an approach also fits with the legislative requirement of a "mandate" as opposed to a less rigorous standard for of a "mandate" as opposed to a less rigorous standard for the type of public policy that is implicated.the type of public policy that is implicated.

iv. A summary of what iv. A summary of what constitutes public policyconstitutes public policy

► Code of Ethics: Hippocratic Oath is not a source of public policy - Code of Ethics: Hippocratic Oath is not a source of public policy - Pierce v. Ortho.Pierce v. Ortho., , suprasupra

► Society of Toxicology’s Code of Ethics can be public policy. Society of Toxicology’s Code of Ethics can be public policy. Mehlman v. Mobil Oil Corp.Mehlman v. Mobil Oil Corp. supra. supra.

► Attorney’s Code of Professional Responsibility is a source of Attorney’s Code of Professional Responsibility is a source of public policy. public policy. Jacob v. Norris, McLaughlin & MarcusJacob v. Norris, McLaughlin & Marcus, 128 N.J. 10 , 128 N.J. 10 (1992). (Restrictive covenants unenforceable against attorneys - (1992). (Restrictive covenants unenforceable against attorneys - because of public policy protecting attorney-client relationships).because of public policy protecting attorney-client relationships).

► State Board of Psychological Examiners Regulation is a source of State Board of Psychological Examiners Regulation is a source of public policy. public policy. Comprehensive Psychology System v. Prince,Comprehensive Psychology System v. Prince, __ __ N.J. Super. __ (App. Div. 2005); 2005 WL 275822. - (Restrictive N.J. Super. __ (App. Div. 2005); 2005 WL 275822. - (Restrictive covenants unenforceable against psychologists because of public covenants unenforceable against psychologists because of public policy protecting psychologist-patient relationshippolicy protecting psychologist-patient relationship

► American Medical Association Council on Ethical and Judicial American Medical Association Council on Ethical and Judicial Affairs Affairs maymay constitute public policy. constitute public policy. Pierson v. Medical Health Pierson v. Medical Health CentersCenters, 2004 WL 1416265, , 2004 WL 1416265, Certif. GrantedCertif. Granted 181 N.J. 336. 181 N.J. 336. (Restrictive covenants still enforceable against doctors based (Restrictive covenants still enforceable against doctors based upon upon Karlin v. WeisbergKarlin v. Weisberg, 77 NJ 408 (1978) despite physician-, 77 NJ 408 (1978) despite physician-patient relationship). patient relationship).

iv. A summary of what iv. A summary of what constitutes public policy (cont’d)constitutes public policy (cont’d)► Internal Complaints Internal Complaints

Abbamont v. Piscataway Twp. Bd. of Ed.Abbamont v. Piscataway Twp. Bd. of Ed., 136 N.J. 28 (1994). Public , 136 N.J. 28 (1994). Public policy is implicated where a teacher complained that improper policy is implicated where a teacher complained that improper ventilation was causing an unsafe working conditionventilation was causing an unsafe working condition

Higgins v. Pascack Valley Hosp.Higgins v. Pascack Valley Hosp., 158 NJ 404 (1999). Public policy is , 158 NJ 404 (1999). Public policy is implicated where employee makes in internal complaint that implicated where employee makes in internal complaint that improper forms were filed and that a co-worker mishandled a improper forms were filed and that a co-worker mishandled a patient’s medication.patient’s medication.

Roach v. TRWRoach v. TRW, 164 N.J. 598 (2000). Public policy is implicated , 164 N.J. 598 (2000). Public policy is implicated where employee makes an internal complaint about fraudulent where employee makes an internal complaint about fraudulent activity of a co-worker.activity of a co-worker.

Gerard v. Camden Co. Health ServicesGerard v. Camden Co. Health Services, 348 N.J. Super. 516 (App. , 348 N.J. Super. 516 (App. Div. 2002), Div. 2002), certif. deniedcertif. denied 174 N.J. 40 (2002). An employee’s 174 N.J. 40 (2002). An employee’s complaint that another employee is being falsely disciplined complaint that another employee is being falsely disciplined constitutes public policy.constitutes public policy.

► Employment AgreementsEmployment Agreements Maw v. Advanced Clinical CommunicationsMaw v. Advanced Clinical Communications, 179 N.J. 439 (2004). A , 179 N.J. 439 (2004). A

dispute between an employer and employee over a restrictive dispute between an employer and employee over a restrictive covenant does not implicate public policy.covenant does not implicate public policy.

Ackerman v. The Money StoreAckerman v. The Money Store, 321 N.J. Super. 308 (Law Div. 1998). , 321 N.J. Super. 308 (Law Div. 1998). A dispute over an arbitration agreement implicates public policy A dispute over an arbitration agreement implicates public policy and can violate LAD and give rise to a and can violate LAD and give rise to a PiercePierce claim. claim.

e. Reasonable belief of e. Reasonable belief of violationviolation

The employee’s reasonable The employee’s reasonable belief that his or her employer's belief that his or her employer's conduct was violating a clear conduct was violating a clear mandate of public policy must be mandate of public policy must be ‘‘objectively reasonableobjectively reasonable.’ .’ Dzwonar v. McDevittDzwonar v. McDevitt, 177 N.J. , 177 N.J. 451, 462 (2003). 451, 462 (2003).

2. Common Law 2. Common Law RetaliationRetaliation

In New Jersey, the Supreme Court In New Jersey, the Supreme Court allows for common law retaliation allows for common law retaliation for a termination that occurs for a termination that occurs because the employee complained because the employee complained of a violation of public policy that of a violation of public policy that differs from CEPA in certain differs from CEPA in certain respects. respects. Pierce v. Ortho Pierce v. Ortho Pharmaceutical Corp.Pharmaceutical Corp., 84 N.J. 58, 72 , 84 N.J. 58, 72 (1980). (1980).

2. Common Law 2. Common Law Retaliation (cont’d)Retaliation (cont’d) Some of the critical differences is that:Some of the critical differences is that:

– CEPA has a one year statute of limitations CEPA has a one year statute of limitations compared to the two year statute for Pierce claims. compared to the two year statute for Pierce claims.

– CEPA does not require a written complaint whereas CEPA does not require a written complaint whereas Pierce claims seem to so require. Pierce claims seem to so require.

– The public policy requirements under Pierce claims The public policy requirements under Pierce claims are more strictly construed than under CEPA. are more strictly construed than under CEPA.

– Some courts have construed Pierce to require an Some courts have construed Pierce to require an actual complaint to an outside agency whereas actual complaint to an outside agency whereas CEPA protects employees who threaten to make a CEPA protects employees who threaten to make a complaint but do not actually make the complaint.complaint but do not actually make the complaint.

3. Statutory Claims3. Statutory Claims Numerous employment statutes, such as the ones listed Numerous employment statutes, such as the ones listed

below have separate provisions that provide for a below have separate provisions that provide for a retaliation claim if the employee has a reasonable belief retaliation claim if the employee has a reasonable belief that he/she is subject to the protections of the statute, that he/she is subject to the protections of the statute, alleges a violation of the statute, and is then subjected to a alleges a violation of the statute, and is then subjected to a retaliatory adverse action by the employer:retaliatory adverse action by the employer:

– New Jersey Law Against Discrimination;New Jersey Law Against Discrimination;– N.J.S.A. 10:5-1 N.J.S.A. 10:5-1 et seq.;et seq.;– Title VII of the 1964 Civil Rights Act, Title VII of the 1964 Civil Rights Act, – 42 U.S.C. § 2000e-2(a);42 U.S.C. § 2000e-2(a);– the Age Discrimination in Employment Act;the Age Discrimination in Employment Act;– the Americans with Disability Act; the Americans with Disability Act; – the New Jersey Worker’s Compensation Statute; the New Jersey Worker’s Compensation Statute; – N.J.S.A. 34:15-1N.J.S.A. 34:15-1 et seq et seq., OSHA regulations, etc. ., OSHA regulations, etc.

4. 4. 42 U.S.C. §198342 U.S.C. §1983 Section 1983 claims pertain to retaliation that a Section 1983 claims pertain to retaliation that a

person might experience for exercising constitutional person might experience for exercising constitutional rights against persons acting under color of law. A rights against persons acting under color of law. A major difference between §1983 and CEPA has been major difference between §1983 and CEPA has been that CEPA traditionally has only protected employees that CEPA traditionally has only protected employees while §1983 protects “all persons” including while §1983 protects “all persons” including independent contractors. This has now changed with independent contractors. This has now changed with the opinion in the opinion in D'Annunzio v. Prudential Ins. Co. of D'Annunzio v. Prudential Ins. Co. of AmericaAmerica, --- A.2d ----, 2005 WL 3789960 (App. Div. , --- A.2d ----, 2005 WL 3789960 (App. Div. 2006). 2006). See infra.See infra.

5. New Jersey Civil Acts Act, 5. New Jersey Civil Acts Act, N.J.S.A.10:6-1, N.J.S.A.10:6-1, et seq.et seq.

The Attorney General has the right to The Attorney General has the right to pursue a constitutional or retaliation pursue a constitutional or retaliation cause of action against any person cause of action against any person whether of not acting under color of law. whether of not acting under color of law.

The statute also creates an analogous The statute also creates an analogous state version of a Section 1983 claim. state version of a Section 1983 claim. Someone who prevails in this case Someone who prevails in this case obtains attorneys’ fees which is provided obtains attorneys’ fees which is provided in the statute. in the statute.

The elements of this statute are as The elements of this statute are as follows:follows:

New Jersey Civil Acts Act, New Jersey Civil Acts Act, N.J.S.A.10:6-1, N.J.S.A.10:6-1, et seq.et seq. (cont’d) (cont’d)

a. If a person, whether or not acting under color of law, a. If a person, whether or not acting under color of law, subjects or causes to be subjected any other person to the subjects or causes to be subjected any other person to the deprivation of any substantive due process or equal deprivation of any substantive due process or equal protection rights, privileges or immunities secured by the protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate action for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the relief. The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If State and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an the Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall action brought pursuant to this subsection, the court shall order the distribution of any award of damages to the order the distribution of any award of damages to the injured party and shall award reasonable attorney's fees injured party and shall award reasonable attorney's fees and costs to the Attorney General. The penalty provided in and costs to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a subsection e. of this section shall be applicable to a violation of this subsection.violation of this subsection.


b. If a person, whether or not acting under color of law, b. If a person, whether or not acting under color of law, interferes or attempts to interfere by threats, intimidation interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief. for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the State The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If the and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an action Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall order brought pursuant to this subsection, the court shall order the distribution of any award of damages to the injured the distribution of any award of damages to the injured party and shall award reasonable attorney's fees and costs party and shall award reasonable attorney's fees and costs to the Attorney General. The penalty provided in subsection to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a violation of this e. of this section shall be applicable to a violation of this subsection. subsection.


c. Any person who has been deprived of any c. Any person who has been deprived of any substantive due process or equal protection rights, substantive due process or equal protection rights, privileges or immunities secured by the privileges or immunities secured by the Constitution or laws of the United States, or any Constitution or laws of the United States, or any substantive rights, privileges or immunities secured substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or privileges or immunities has been interfered with or attempted to be interfered with, by threats, attempted to be interfered with, by threats, intimidation or coercion by a person acting under intimidation or coercion by a person acting under color of law, may bring a civil action for damages color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.shall be applicable to a violation of this subsection.


d. An action brought pursuant to this act may be filed in Superior d. An action brought pursuant to this act may be filed in Superior Court. Upon application of any party, a jury trial shall be directed.Court. Upon application of any party, a jury trial shall be directed.

e. Any person who deprives, interferes or attempts to interfere by e. Any person who deprives, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal any other person of any substantive due process or equal protection rights, privileges or immunities secured by the protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or rights, privileges or immunities secured by the Constitution or laws of this State is liable for a civil penalty for each violation. The laws of this State is liable for a civil penalty for each violation. The court or jury, as the case may be, shall determine the appropriate court or jury, as the case may be, shall determine the appropriate amount of the penalty. Any money collected by the court in amount of the penalty. Any money collected by the court in payment of a civil penalty shall be conveyed to the State Treasurer payment of a civil penalty shall be conveyed to the State Treasurer for deposit into the State General Fund.for deposit into the State General Fund.

f. In addition to any damages, civil penalty, injunction or other f. In addition to any damages, civil penalty, injunction or other appropriate relief awarded in an action brought pursuant to appropriate relief awarded in an action brought pursuant to subsection c. of this section, the court may award the prevailing subsection c. of this section, the court may award the prevailing party reasonable attorney’s fees and costs.party reasonable attorney’s fees and costs.

L.2004, c. 143, § 2, eff. Sept. 10, 2004.L.2004, c. 143, § 2, eff. Sept. 10, 2004.

II.II. CEPA vs. PIERCE – A COMPARISONCEPA vs. PIERCE – A COMPARISON1. Waiver1. Waiver

► Employee Protection Act, N.J.S.A. 34:19-1, Employee Protection Act, N.J.S.A. 34:19-1, et et seq.seq. in 1986. Barratt v. Cushman & Wakefield in 1986. Barratt v. Cushman & Wakefield of New Jersey, Inc., 144 N.J. 120, 126-27 of New Jersey, Inc., 144 N.J. 120, 126-27 (1996); Young v. Schering Corp., 141 N.J. 16, (1996); Young v. Schering Corp., 141 N.J. 16, 26-27 (1996). While the Legislature codified 26-27 (1996). While the Legislature codified the common law retaliation Pierce claims, it the common law retaliation Pierce claims, it did not abolish common law claims. Id.did not abolish common law claims. Id.

► However, CEPA has a provision that requires However, CEPA has a provision that requires that a plaintiff cannot pursue another that a plaintiff cannot pursue another retaliation claim if that person is pursuing a retaliation claim if that person is pursuing a CEPA action. N.J.S.A. 34:19-8. However, both CEPA action. N.J.S.A. 34:19-8. However, both CEPA and Pierce actions may be pled in the CEPA and Pierce actions may be pled in the Complaint as long as one cause of action is Complaint as long as one cause of action is dropped before trial.dropped before trial.

CEPA vs. PIERCE – A COMPARISONCEPA vs. PIERCE – A COMPARISON1. Waiver (cont’d)1. Waiver (cont’d)

► The Appellate Division directly addressed The Appellate Division directly addressed this issue in Maw v. Advanced Clinical this issue in Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, Communications, Inc., 359 N.J. Super. 420, 440-41 (N.J. Super. 2003), 440-41 (N.J. Super. 2003), rev’d on other rev’d on other grounds, grounds, 179 N.J. 43 (2004). 179 N.J. 43 (2004).

► In Maw, the defendant had also tried to In Maw, the defendant had also tried to dismiss the Plaintiff’s Pierce claim, making dismiss the Plaintiff’s Pierce claim, making the same arguments advanced by Orkin. the same arguments advanced by Orkin. The Appellate Division held that it is The Appellate Division held that it is inappropriate to dismiss the Pierce claim inappropriate to dismiss the Pierce claim until the Plaintiff has had an opportunity to until the Plaintiff has had an opportunity to take discovery, The Court explained:take discovery, The Court explained:

CEPA vs. PIERCE – A CEPA vs. PIERCE – A COMPARISONCOMPARISON

1. Waiver (cont’d)1. Waiver (cont’d)► Common-law claims of wrongful discharge in Common-law claims of wrongful discharge in

violation of public policy, which merely duplicate a violation of public policy, which merely duplicate a CEPA claim, are routinely dismissed under CEPA's CEPA claim, are routinely dismissed under CEPA's exclusivity provision, albeit, generally at later exclusivity provision, albeit, generally at later stages of the litigation. stages of the litigation. Falco v. Cmty. Med. Ctr.Falco v. Cmty. Med. Ctr., 296 , 296 N.J.Super. 298, 304, 318, (App.Div.1997), N.J.Super. 298, 304, 318, (App.Div.1997), certif. certif. denieddenied, 153 N.J. 405, 709 A.2d 798 (1998); , 153 N.J. 405, 709 A.2d 798 (1998); Catalane Catalane v. Gilian Instrument Corp.v. Gilian Instrument Corp., 271 N.J.Super. 476, 492-, 271 N.J.Super. 476, 492-93 (App.Div.), 93 (App.Div.), certif. deniedcertif. denied, 136 N.J. 298, 642 A.2d , 136 N.J. 298, 642 A.2d 1006 (1994); 1006 (1994); Flaherty v. The EnclaveFlaherty v. The Enclave, 255 N.J.Super. , 255 N.J.Super. 407, 413, 605 A.2d 301 (Law Div.1992). 407, 413, 605 A.2d 301 (Law Div.1992).


1. Waiver (cont’d)1. Waiver (cont’d)► Indeed, the Supreme Court has held that Indeed, the Supreme Court has held that

this was precisely the Legislature's intent in this was precisely the Legislature's intent in enacting CEPA's exclusivity provision. enacting CEPA's exclusivity provision. YoungYoung, , suprasupra, 141 N.J. at 27, ("we are persuaded , 141 N.J. at 27, ("we are persuaded that the Legislature intended that the that the Legislature intended that the N.J.S.A. 34:19-8 waiver prevent an employee N.J.S.A. 34:19-8 waiver prevent an employee from pursuing both statutory and common-from pursuing both statutory and common-law retaliatory discharge causes of action" law retaliatory discharge causes of action" and "curtail ... cumulative remedial and "curtail ... cumulative remedial actions").actions").


1. Waiver (cont’d)1. Waiver (cont’d)► Although none of the cases cited specifically Although none of the cases cited specifically

address at what point the election must be made, address at what point the election must be made, YoungYoung is instructive. The Court found the election is instructive. The Court found the election needed to be made "once a CEPA claim is needed to be made "once a CEPA claim is 'instituted.' " 'instituted.' " Id.Id. at 29. at 29.

► However, in discussing the meaning of "institution However, in discussing the meaning of "institution of an action," the Court noted that "[t]he meaning of an action," the Court noted that "[t]he meaning of 'institution of an action' could conceivably of 'institution of an action' could conceivably contemplate an election of remedies with contemplate an election of remedies with restrictions in which the election is not considered restrictions in which the election is not considered to have been made until discovery is complete or to have been made until discovery is complete or the time of a pretrial conference contemplated by the time of a pretrial conference contemplated by Rule 4:25-1. Rule 4:25-1.


1. Waiver (cont’d)1. Waiver (cont’d)► Another question is whether the statutory Another question is whether the statutory

waiver is applicable if the CEPA claim is waiver is applicable if the CEPA claim is withdrawn or otherwise concluded prior to withdrawn or otherwise concluded prior to judgment on the merits." judgment on the merits." Id.Id. at 32. at 32. We take We take this language to mean that before electing this language to mean that before electing remedies, a plaintiff should have an remedies, a plaintiff should have an opportunity to complete discovery. Only opportunity to complete discovery. Only after gaining access to all of the facts, will after gaining access to all of the facts, will a plaintiff be in a position to make a a plaintiff be in a position to make a knowing and meaningful election.knowing and meaningful election.

► MawMaw, 359 N.J. Super. at 441. (Emphasis added), 359 N.J. Super. at 441. (Emphasis added)


1. Waiver (cont’d)1. Waiver (cont’d)► Justices Zazzali and Long of the New Jersey Justices Zazzali and Long of the New Jersey

Supreme Court also gave guidance on this Supreme Court also gave guidance on this issue in their thoughtfully reasoned dissent. issue in their thoughtfully reasoned dissent.

► Although a plaintiff who pursues a CEPA Although a plaintiff who pursues a CEPA claim must forego a common-law claim, it claim must forego a common-law claim, it would be unjust to force a party into making would be unjust to force a party into making that decision at the pleading stage of the that decision at the pleading stage of the proceedings before a court has determined proceedings before a court has determined whether either action may lie. whether either action may lie. MawMaw, 139 N.J. , 139 N.J. at 450, dissent at FN1.at 450, dissent at FN1.


1. Waiver (cont’d)1. Waiver (cont’d)► The statute of limitations for CEPA is one year, The statute of limitations for CEPA is one year, N.J.S.A.N.J.S.A.

34:19-5. The statute of limitations for 34:19-5. The statute of limitations for PiercePierce claims is two claims is two years for tort claims. years for tort claims. Montells v. HaynesMontells v. Haynes, 133 N.J. 282 , 133 N.J. 282 (1993) (holding that common law tort claims are governed (1993) (holding that common law tort claims are governed by two-year statute). The statute of limitations for by two-year statute). The statute of limitations for PiercePierce claims is six years for contract claims. claims is six years for contract claims. Pierce Pierce, 84 N.J. at 72., 84 N.J. at 72.

► PiercePierce claims only pertain to terminations. claims only pertain to terminations. CEPACEPA more more broadly protects “any retaliatory action.” broadly protects “any retaliatory action.” N.J.S.A.N.J.S.A. 34:19-3. 34:19-3.

► Because Because PiercePierce claims are more congruous with the claims are more congruous with the common law retaliation claims of other states, common law retaliation claims of other states, PiercePierce claims claims will be recognized in some situations involving interstate will be recognized in some situations involving interstate claims, whereas claims, whereas CEPACEPA claims may not. claims may not. SeeSee e.g.e.g. Ballinger v. Ballinger v. Delaware River Port AuthorityDelaware River Port Authority, 172 N.J. 586 (2002)., 172 N.J. 586 (2002).

► Attorneys fees are available under CEPA (NJSA 34:19-5e), Attorneys fees are available under CEPA (NJSA 34:19-5e), but are not available under but are not available under PiercePierce unless the claim is unless the claim is brought for retaliatory termination taken under color of law brought for retaliatory termination taken under color of law (Civil Rights Act. (Civil Rights Act. NJSANJSA 10:6-2.). 10:6-2.).

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints.The necessity of prior complaints.

To pursue a CEPA claim, there is a statutory To pursue a CEPA claim, there is a statutory requirement that before complaining to an requirement that before complaining to an outside agency, the employee must first make an outside agency, the employee must first make an internal complaint, unless the employee is internal complaint, unless the employee is reasonably certain that one of more supervisors reasonably certain that one of more supervisors already know about the problem, or the employee already know about the problem, or the employee reasonably fears physical harm or that the reasonably fears physical harm or that the situation is emergent. situation is emergent. N.J.S.A.N.J.S.A. 34:19-4. 34:19-4.

There is no requirement of a complaint to an There is no requirement of a complaint to an outside agency on part (c) claims,outside agency on part (c) claims, see supra see supra Abbamont v. Piscataway Twp. Bd. of Ed.Abbamont v. Piscataway Twp. Bd. of Ed., 136 N.J. , 136 N.J. 28 (1994); 28 (1994); Higgins v. Pascack Valley Hosp.Higgins v. Pascack Valley Hosp., 158 NJ , 158 NJ 404 (1999); 404 (1999); Roach v. TRWRoach v. TRW, 164 N.J. 598 (2000); , 164 N.J. 598 (2000); Gerard v. Camden Co. Health ServicesGerard v. Camden Co. Health Services, 348 N.J. , 348 N.J. Super. 516 (App. Div. 2002), Super. 516 (App. Div. 2002), certif. deniedcertif. denied 174 174 N.J. 40 (2002).N.J. 40 (2002).

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints The necessity of prior complaints (cont’d).(cont’d). To pursue a Pierce claim, there is some confusion To pursue a Pierce claim, there is some confusion

as to whether there is a requirement for a as to whether there is a requirement for a complaint to an outside agency. The confusion has complaint to an outside agency. The confusion has arisen as a result of incorrect dictum contained in arisen as a result of incorrect dictum contained in Young v. Schering Corp.Young v. Schering Corp., 141 N.J. 16, 27 (1995). , 141 N.J. 16, 27 (1995).

The Appellate Division in The Appellate Division in YoungYoung had held that an had held that an outside complaint is necessary, 275 N.J. Super. outside complaint is necessary, 275 N.J. Super. 221, 234-35 (App. Div. 1994), and relied upon a 221, 234-35 (App. Div. 1994), and relied upon a partial sentence from partial sentence from House v. Carter-Wallace, Inc.House v. Carter-Wallace, Inc., , 232 N.J.Super. 42, 49, 556 A.2d 353 (App.Div.), 232 N.J.Super. 42, 49, 556 A.2d 353 (App.Div.), certif. denied, 117 N.J. 154, 564 A.2d 874 (1989). certif. denied, 117 N.J. 154, 564 A.2d 874 (1989). The complete sentence from The complete sentence from HouseHouse states: states:

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints The necessity of prior complaints (cont’d)(cont’d) However, no New Jersey case has However, no New Jersey case has

recognized a claim for wrongful recognized a claim for wrongful discharge based solely upon an discharge based solely upon an employee's internal complaints about a employee's internal complaints about a corporate decision, where the employee corporate decision, where the employee has failed to bring the alleged violation has failed to bring the alleged violation of public policy to any governmental or of public policy to any governmental or other outside authority other outside authority or to take or to take other effective action in opposition other effective action in opposition to the policy. to the policy. (Emphasis added). (Emphasis added).

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints The necessity of prior complaints (cont’d).(cont’d). Cases holding that a Cases holding that a PiercePierce claim claim

exists in the absence of complaint to exists in the absence of complaint to outside agencies include outside agencies include Carracchio Carracchio v. Aldan Leeds, Inc.v. Aldan Leeds, Inc., 223 N.J. Super. , 223 N.J. Super. 435 (App. Div. 1988);- 435 (App. Div. 1988);- Hennessey v. Hennessey v. Coastal Eagle Point Oil Co.,Coastal Eagle Point Oil Co., 129 N.J. 129 N.J. 81, 92, 93 (1992); 81, 92, 93 (1992); Velantzas v. Velantzas v. Colgate-PalmoliveColgate-Palmolive - Velantzas v. - Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. Colgate-Palmolive Co. Inc., 109 N.J. 189 (1988). 189 (1988).

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints The necessity of prior complaints (cont’d).(cont’d). On February 6, 2006, Federal Judge On February 6, 2006, Federal Judge

Greenaway, in Greenaway, in Badrinauth v. Metlife Badrinauth v. Metlife Corp.Corp., Slip Copy, 2006 WL 288098 , Slip Copy, 2006 WL 288098 (D.N.J. 2006), rejected the defendant’s (D.N.J. 2006), rejected the defendant’s argument that NJ has, in effect, a per argument that NJ has, in effect, a per se rule requiring that an actual report se rule requiring that an actual report to an external authority is a predicate to an external authority is a predicate to maintaining an action for wrongful to maintaining an action for wrongful termination under Pierce.termination under Pierce.

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints (con’d)The necessity of prior complaints (con’d)

PiercePierce claims have been recognized in situations where a claims have been recognized in situations where a termination is in violation of public policy, even where there termination is in violation of public policy, even where there is no complaint or refusal to participate in unlawful is no complaint or refusal to participate in unlawful activities. activities. – Carracchio v. Aldan Leeds, Inc.Carracchio v. Aldan Leeds, Inc., 223 N.J. Super. 435 (App. Div. , 223 N.J. Super. 435 (App. Div.

1988) - employee was is terminated for suffering a worker’s 1988) - employee was is terminated for suffering a worker’s compensation injury may bring compensation injury may bring PiercePierce claim, even when claim, even when employer, and not employee, files claim with their insurance employer, and not employee, files claim with their insurance company. company.

– Hennessey v. Coastal Eagle Point Oil Co.,Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 129 N.J. 81, 92, 93 (1992) - employee may state a (1992) - employee may state a PiercePierce claim if terminated for claim if terminated for refusing a random drug test, where the employer does not refusing a random drug test, where the employer does not have a legitimate reason to require such a test.have a legitimate reason to require such a test.

– Velantzas v. Colgate-PalmoliveVelantzas v. Colgate-Palmolive - Velantzas v. Colgate-Palmolive - Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. 189 (1988) - employee states a Co. Inc., 109 N.J. 189 (1988) - employee states a PiercePierce claim claim when terminated for requesting to see personnel file for when terminated for requesting to see personnel file for purpose of establishing discrimination.purpose of establishing discrimination.

– Epperson v. Walmart StoresEpperson v. Walmart Stores, 373 N.J. Super. 522, 541 (App. Div. , 373 N.J. Super. 522, 541 (App. Div. 2004) - employee may state 2004) - employee may state PiercePierce claim where employee is claim where employee is wrongfully terminated and maliciously prosecuted.wrongfully terminated and maliciously prosecuted.

2. Differences between Pierce and CEPA 2. Differences between Pierce and CEPA claims claims The necessity of prior complaints The necessity of prior complaints (cont’d).(cont’d).

– Under Pierce it is possible to claim that an Under Pierce it is possible to claim that an employee who is discharged for no reason employee who is discharged for no reason and then must defend a malicious criminal and then must defend a malicious criminal proceeding instituted by her employer ma proceeding instituted by her employer ma state a state a PiercePierce claim. claim. SeeSee Giudice v. Drew Giudice v. Drew Chem. Corp.Chem. Corp., 210 N.J.Super. 32, 36, 509 , 210 N.J.Super. 32, 36, 509 A.2d 200 (App.Div.), A.2d 200 (App.Div.), certif. deniedcertif. denied, 104 N.J. , 104 N.J. 465, 517 A.2d 448, 449 (1986), 465, 517 A.2d 448, 449 (1986),

– But not have a cause of action when But not have a cause of action when "merely" victimized by similar conduct. "merely" victimized by similar conduct. (The (The PiercePierce claim was dismissed on claim was dismissed on “waiver” grounds, as there was also a “waiver” grounds, as there was also a CEPA and malicious prosecution claim CEPA and malicious prosecution claim which subsumed the which subsumed the PiercePierce claim.). claim.).

3. No Waiver of claims requiring 3. No Waiver of claims requiring different elementsdifferent elements

The waiver or exclusivity provision of The waiver or exclusivity provision of CEPA only extends to claims that require a CEPA only extends to claims that require a finding of retaliatory conduct that is finding of retaliatory conduct that is actionable under CEPA. The waiver actionable under CEPA. The waiver exception does not apply to those causes exception does not apply to those causes of action that are substantially of action that are substantially independent of the CEPA claim. independent of the CEPA claim. Young v. Young v. Schering Corp.Schering Corp., 141 N.J. 16, 29 (1996)., 141 N.J. 16, 29 (1996).

PART II: SEXUAL HARRASMENT

Purposes of this Training

WE WANT YOU TO BE INFORMED.

WE WANT YOU TO BE RESPONSIBLE.

WE WANT YOU TO KNOW HOW TO HANDLE SITUATIONS APPROPRIATELY.

What is Sexual Harassment About?

Sexual Harassment is about using supervisory power to extract sexual favors from a subordinate or causing a hostile work environment based on sexual advances.


Sexual Harassment is about stereotypes of how people behave in working relationships and not recognizing that the rules have changed.


Sexual harassment does not happen just to women. Both men and women can be subject to sexual harassment.


Sexual Harassment is not just about sex.

It is about conduct designed to contribute to a sense of powerlessness in a subordinate or a colleague.


Sexual harassment does not always have to occur between two individuals of the opposite sex.

The Cost of Engaging in The Cost of Engaging in Sexual HarassmentSexual Harassment

• It is not just liability we are talking about.

• Individuals can be held liable for engaging in sexual harassment.

A plaintiff could A plaintiff could potentially come after potentially come after your personal assets, your personal assets, your home, or even your home, or even garnish your wages.garnish your wages.

Non-Monetary Costs of Non-Monetary Costs of Sexual HarassmentSexual Harassment

• Complaints of sexual harassment are investigated and can prove embarrassing for individuals who are accused of such acts.

• Co-employees can be liable to each other.

Forms of Sexual Forms of Sexual HarassmentHarassment Quid Pro Quo Harassment.Quid Pro Quo Harassment.

Hostile Work Environment.Hostile Work Environment.

Quid Pro Quo Harassment

Literally means “this for that” in Latin.

Easiest type of sexual harassment to recognize.


In short, quid pro quo sexual harassment occurs where a sexual favor is exchanged for a job benefit or protection against a job detriment.


NOTE: Even where a favor is not actually exchanged, but simply requested, and no job detriment occurs, the request can constitute an act of sexual harassment known as a hostile work environment.

ELEMENTS OF QUID PRO QUO HARASSMENT

UNWELCOME SEXUAL ADVANCES OF A SUPERVISOR AFFECTING A TERM OR CONDITION OF

EMPLOYMENT OF A SUBORDINATE PROMISING SOMETHING FOR SUBMISSION

Hostile Work Environment Hostile Work Environment Harassment (Environmental Harassment (Environmental Harassment)Harassment)

DefinitionDefinition: Conduct on the part : Conduct on the part of an employer, supervisor or of an employer, supervisor or co-employee that creates a co-employee that creates a hostile, intimidating or offensive hostile, intimidating or offensive work environment.work environment.

Hostile Work EnvironmentHostile Work Environment

NO BRIGHT LINE ON HOW NO BRIGHT LINE ON HOW MANY TIMES IT TAKES.MANY TIMES IT TAKES.

ONE SEVERE COMMENT OR ONE SEVERE COMMENT OR ACT CAN CONSTITUTE A ACT CAN CONSTITUTE A HOSTILE WORK HOSTILE WORK ENVIRONMENT.ENVIRONMENT.

Hostile Work Environment Hostile Work Environment

PHYSICALPHYSICAL

VERBALVERBAL

VISUALVISUAL

Physical Environmental Physical Environmental HarassmentHarassment

Unwelcome touchingUnwelcome touching– fondling fondling – pinchingpinching– pattingpatting– brushing up against brushing up against

someonesomeone– kissingkissing– moving into their moving into their

personal space personal space continually continually

Unwelcome touchingUnwelcome touching– putting your arms putting your arms

around them, whether around them, whether playful or unplayfulplayful or unplayful

– placing your hand on placing your hand on or massaging their or massaging their shoulder or backshoulder or back

– touching another touching another person’s clothing or person’s clothing or jewelryjewelry

Verbal Environmental Verbal Environmental HarassmentHarassment

Making comments Making comments about a about a subordinate’s subordinate’s anatomy, whether anatomy, whether complimentary or complimentary or derogatoryderogatory

Lewd or suggestive Lewd or suggestive sexual jokessexual jokes

BanterBanter WhistlingWhistling

Inquiries about one’s Inquiries about one’s sexual activities; sexual activities;

Use of sexually Use of sexually derogatory terms.derogatory terms.

Using slang or street Using slang or street terms, whether terms, whether English or another English or another language, to refer to language, to refer to another employee, another employee, e.g., “chick,” “bitch,” e.g., “chick,” “bitch,” “homo,” “faggot.”“homo,” “faggot.”

Visual Environmental Visual Environmental HarassmentHarassment

Calendars, pin-up Calendars, pin-up centerfolds, pictures, centerfolds, pictures, drawings, etc., that drawings, etc., that are sexually oriented are sexually oriented or offensive to other or offensive to other employees employees

Sexually explicit or Sexually explicit or pornographic pornographic magazines.magazines.

E-mails/Internet sitesE-mails/Internet sites– Sent to employeeSent to employee– Displayed on screenDisplayed on screen

Leering, ogling or Leering, ogling or staring at a person’s staring at a person’s anatomy, or winking anatomy, or winking suggestively.suggestively.

Directing your eyes Directing your eyes at the individual at the individual whenever he or she whenever he or she walks by.walks by.

ELEMENTS OF HOSTILE ELEMENTS OF HOSTILE WORK ENVIRONMENTWORK ENVIRONMENT

UNWELCOME SEXUAL CONDUCTUNWELCOME SEXUAL CONDUCT that is SEVERE OR PERVASIVE that is SEVERE OR PERVASIVE in the view of the REASONABLE in the view of the REASONABLE

VICTIMVICTIM that ALTERS the reasonable that ALTERS the reasonable

victim’s WORK ENVIRONMENTvictim’s WORK ENVIRONMENT to RENDER it HOSTILEto RENDER it HOSTILE

Workplace RomancesWorkplace RomancesSubsequent discipline or other Subsequent discipline or other detriment may be claimed to be in detriment may be claimed to be in retaliation for ending the retaliation for ending the relationship.relationship.Claim that the relationship was never Claim that the relationship was never consensual.consensual.Constructive discharge claim if the Constructive discharge claim if the person in position of authority is not person in position of authority is not willing to believe that the willing to believe that the relationship has ended.relationship has ended.

Legal Theories

• FEDERAL LAW• Title VII• ADEA • ADA

• STATE LAW• LAD• CEPA

• Workers’ Compensation Law

• Common Law Claims• Intentional Infliction of

Emotional Distress• Assault• Battery• Invasion of Privacy• False Imprisonment

What to Do With Sexual What to Do With Sexual Harassment Problems When They Harassment Problems When They

Occur?Occur?

Don’t try to go it alone.Don’t try to go it alone.

Use the existing system to address any Use the existing system to address any concerns.concerns.

Don’t sweep the problem under the rug.Don’t sweep the problem under the rug.

Don’t turn a deaf ear or blind eye to Don’t turn a deaf ear or blind eye to possible sexual harassment.possible sexual harassment.

You You MUSTMUST report any suspected or report any suspected or known incidents of sexual harassment.known incidents of sexual harassment.

Reporting and Investigation Procedures

Aside from not actually engaging in sexual harassment, you have only one responsibility when you become aware of potential sexually harassing conduct:

REPORT, REPORT, REPORT.

No Retaliation

We always want to encourage employees to report any sexual harassment problems to the company.

Sexual Harassment Policy

Cooperation.

An effective sexual harassment/ discrimination policy requires the support and example of all company personnel.

All employees are responsible for their own conduct, as well as the conduct of personnel they supervise or manage.

Employees can be held personally liable for any illegal conduct in which they engage, or in which they knew, or should have known, was occurring and failed to report.

Our Purpose Here To sensitize; To recognize pressures of the

workplace--the hectic pace; To recognize that the rules have

changed; To protect yourself from claims of

sexual harassment as well as harassment itself; and

CEPA/PIERCE/LAD Presentation

Law Offices of Ty Hyderally, PC96 Park Street

Montclair, NJ 07042

Ph: (973) [email protected]

www.employmentlit.com

cepa, pierce, and lad presentation for: legal services of new jersey 100 metroplex drive at...

Documents

cepa claims

violation of law

violation of public

elements of cepa action

pierce violation

public health

public body

waiver of claims