CEPA is a complex statute and a detailed series of court decisions that interpret it.- This blog will discuss whether CEPA covers reported violations of an employment manual.
In this case the plaintiff was a Department of Corrections’ officer since 1997 assigned to the Mid-State Correctional Facility at Fort Dix. He claimed his supervisors mistreated him in violation of the DOC’s “Rules and Regulations for Law Enforcement Personnel” (DOC manual) promulgated by the DOC Commissioner pursuant to N.J.S.A. 30:1B-6.
The forward to the DOC manual states “[t]his manual of [r]ules and [r]egulations shall apply solely to and is binding upon individuals employed in the [DOC] who hold law enforcement titles.” Additionally, Article 1, §1 of the manual provides that “officers who violate these rules of conduct may be subject to disciplinary action” in accordance with the DOC’s policies and procedures. Plaintiff alleged he reported several violations of the DOC manual and faced retaliation because of his reporting.
The issue in the case was whether a violation of an employment manual to supervisors which resulted in retaliation of the employee by an employer and its management is enough to support a CEPA claim.
The basics of a CEPA claim
“CEPA is a statute that ‘promotes a strong public policy of the State’ to effectuate its important social goal.” That social goal is “to ‘protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.'” “Stated differently, CEPA is supposed to encourage, not thwart, legitimate employee complaints.”
CEPA prohibits an employer (including its supervisors, management personnel) from taking “any retaliatory action against an employee” in certain circumstances. One such circumstance, under N.J.S.A. 34:19-3(a)(1), is when the employee “[d]iscloses or threatens to disclose” to a supervisor or a public body an employer’s “activity, policy or practice” that the employee “reasonably believes” violates “a law, or a rule or regulation promulgated pursuant to law.” CEPA similarly protects an employee who:
Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law…; (2) is fraudulent or criminal…; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Accordingly, to state a claim under CEPA, a plaintiff must set forth facts to show:
(1) [they] reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) [they] performed a “whistle-blowing: activity described in [N.J.S.A. 34:19-3(a) or (c)]; (3) an adverse employment action was taken against him or her; and (4) a casual connection exists between the whistle-blowing activity and the adverse employment action.
“The goal of CEPA is to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.” Accordingly, to satisfy the first prong of a CEPA claim, a plaintiff “must identify a law, rule, or regulation promulgated pursuant to law,” if pursuing a claim under either N.J.S.A. 34:19-3(a)(1) or (c)(1), “or a clear mandate of public policy,” if pursuing a claim under N.J.S.A. 34:19-3(c)(3), “that [they] believed” their employer violated. Ibid.
Our Supreme Court has drawn a clear distinction between laws, rules, and regulations, as described in N.J.S.A. 34:19-3(a)(1) and (c)(1), and as in this case “clear mandates of public policy”, as described in N.J.S.A. 34:19-3(c)(3). “[A] clear mandate of public policy conveys a directive for a readily identifiable goal that is in the public interest” and will be viewed as an equivalent to a constitutional protection, statute or rule so there may be “a high degree of public certainty” with respect to what is acceptable and unacceptable workplace conduct.
Accordingly, when a plaintiff claims the employer’s conduct was incompatible with public policy concerning the public’s health, safety or welfare or the protection of the environment under N.J.S.A. 34:19-39(c)(3), “the complained of activity must have public ramifications, and…the dispute between employer and employee must be more than a private disagreement.” Additionally, “that…mandate of public policy [must] be clearly identified and firmly grounded.
A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate. N.J. courts will look to federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy, but those sources are not necessarily exclusive.
Once identified, a court will evaluate whether there is a substantial nexus between the complained-of conduct by the employer (and agents) and [the] law or public policy. To establish a substantial nexus, the law or policy identified must “provide[] a standard against which the conduct of the defendant may be measured.
In my next blog I will discuss the outcome of the case…It is surprising.
To discuss your NJ public employment law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Public Employment Law Attorney