WHISTLEBLOWER PROTECTION – THE NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT

New Jersey has one of the strongest Whistleblower Protection statutes in the United States: the New Jersey Conscientious Employee Protection Act, also known as CEPA. Understanding the scope and limits of this law can help employee’s understand what acts are entitled to the protection of law. Here are answers to some of the most frequently asked questions:

Q- Who is protected by the Conscientious Employee Protection Act?

A- CEPA prohibits “employers” from taking any retaliatory action against “employees” because of whistleblowing activity. The definition of employer and employee can sometimes be confusing. As a rule of thumb, if the employee is being paid on a W-2 for tax reporting, the worker is almost always considered an employee. If the worker is being paid via 1099, the question of whether there is CEPA protection depends upon the amount of control that the worker is placed under. The more control an employer has in that situation, the more likely it is that CEPA will apply.

Q- What kind of activity is considered whistleblowing?

A- CEPA protects a wide range of whistleblowing. The protected activities include disclosing or threatening to disclose internally, reporting or testifying before a public body, and objecting to or refusing to participate. In order to have whistleblower protection, the objectionable activity must be either unlawful, fraudulent, criminal, or a violation of public policy concerning the public health, safety or welfare or protection of the environment. Our courts have defined “public policy” as a policy defined in the U.S. or N.J. Constitution, Federal or State Statutes, or Federal or State Regulations. Sometimes codes of ethics fit in that category as well. Internal policies usually do not fit in that category.

Q- Does CEPA protect the actions of only upper management, or does it also protect reporting about actions of co-workers?

A- Virtually anything that occurs at the workplace can be an activity that is protected by CEPA, so long as that activity meets the definition of unlawful, fraudulent, criminal, or against public policy. If a coworker is stealing, fighting or discriminating, if a supervisor is directing an employee to do something unlawful or fraudulent, if one of the employer’s customers or suppliers ask an employee to do something unlawful, or even if the employee becomes aware of an unlawful activity occurring, CEPA provides protection for the report of any of those activities.

Q- If I want to blow the whistle, what is the best way to do so?

A- We strongly recommend that if there is a matter of concern that you wish to report or disclose, you should consult with an employment attorney before doing so. Employees must be very careful in compiling evidence so that the employee is not themselves committing a criminal or unlawful act in compiling evidence. Of course, evidence is always paramount in a whistleblower case. In NJ, employees are permitted to record conversations that the employee directly participates in so long as the other parties to the conversation are in NJ or other states that permit such recordings. It is not necessary under those circumstances to advise anyone that you are recording. We do not recommend making anonymous complaints. If you make an anonymous complaint, you may not be able to exercise the protection of CEPA because the employer will claim that they had no idea that the employee complained. These are just some of the important issues that must be considered before whistleblowing, and the guidance of an employment attorney is crucial.

Q- What is the statute of limitations for CEPA?

A- CEPA has a short statute of limitations. Any claim for retaliation for whistleblowing must be brought no later than one year after the adverse action. Because the statute of limitations is so short, it is important to consult an attorney to make sure that these important time limits are not exceeded.

There is a lot of news currently regarding whistleblowers and the importance of protecting whistleblowers. Without whistleblower protection, our society would face even greater dangers. If you have a question or concern about an activity in your workplace, please feel free to contact us for a free initial consultation.

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