By Donna Russo, Esq.
A CEPA claim is one brought by an employee against his/her employer for retaliation for whistleblowing: disclosing or threatening to disclose to a supervisor or a public body, an activity, policy or practice of the employer that the employee reasonably believes is in violation of the law or is fraudulent or criminal. Another type of CEPA claim arises when an employee objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of the law or is fraudulent or criminal. N.J.S.A. 34: 19-3.
It is very important to note that, unlike many other causes of action, a CEPA claim has a one year statute of limitations which means that a lawsuit may be initiated in Superior Court within one year. There is no necessity to file a complaint with an administrative agency such as the EEOC.
A successful CEPA claimant is entitled to an award for emotional distress, pain and suffering. However, in most cases the bigger part of the claim is for economic damages i.e. back pay, front pay, loss of benefits etc... The law holds that absent an actual discharge or constructive discharge, the employee does not have a claim for economic damages. A constructive discharge claim arises when the employee contends that he/she could no longer tolerate the work conditions. However, in order to prove a claim of constructive discharge, an employee must show that the employer’s conduct was so intolerable that a reasonable person would be forced to resign rather than continue to tolerate the conduct.
The Appellate Division recently rendered a decision on a case that has facts which, on first glance, appear to set forth intolerable conduct that could amount to a constructive discharge. The employee had made safety complaints and contends that the employer retaliated by imposing restrictions on him that were not imposed on others, concerning use of vacation and sick time; falsely accused him of failing to complete training and attend safety meetings in the summer although he had always been excused from summer meetings in the past; falsely accused him of being lazy and not one of the best performers; required him to notify his supervisor when and where he was going to lunch when other employees did not have this requirement. The employer filed a disciplinary complaint that was false. The employer also forced the employee to undergo mental state examinations (which showed that the employee presented no danger and recommended that the employee return to work). The employee was put on a different shift with a new supervisor where he could not earn the overtime that he was accustomed to.
The employee finally opted for a voluntary six month leave of absence and then retired on a plan that paid benefits significantly less than he was earning. The Court held that the employee could not make a claim for economic damages because he was not actually or constructively discharged. The court disallowed all claims for economic losses.