Untitled Document

A New Jersey Work Environment Council Fact Sheet

You Have A Right To Disclose and Refuse To Participate
In Unlawful Activity Without Employer Retaliation.

New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et seq protects you from employer retaliation if you:

New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et seq protects you from employer retaliation if you:

1. Disclose, or threaten to disclose, to a supervisor or to a public body an activity, policy, or practice of your employer or another employer, with whom there is a business relationship, that you reasonably believe violates a law, rule, or regulation.

2. Provide information to, or testify before, any public body conducting an investigation into any violation of law, rule, or regulation by your employer.

3. Object to, or refuse to participate in an activity that you reasonably believe violates a law or regulation, is fraudulent or criminal, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

If you are a licensed or certified health care professional, CEPA also protects your rights, in some cases, to object to, disclose, and/or refuse to participate in activities which you reasonably believe constitute improper quality of patient care.

If you intend to use your rights under CEPA:

BEFORE REPORTING TO A PUBLIC BODY, you must give written notice to your employer as to the activity, policy, or practice that you reasonably believe violates the law. You must also give your employer a reasonable chance to correct the problem before you report to any public body. Disclosure shall not be required if you are reasonably certain that a supervisor or management knows of the problem. Written notice is unnecessary in cases of emergency or if you reasonably fear imminent physical harm.

DO YOUR HOMEWORK. Cases have been lost because employees could not clearly identify the law, regulation, or clear mandate of public policy on which employees were relying. A clear mandate of public policy cannot be based on a religious doctrine or an individual's personal belief, no matter how correct these principles may be. A code of ethics from a well-recognized source or a law's legislative intent may be used. You should also be able to explain the harm that will result from nondisclosure.

SEEK SUPPORT OF CO-WORKERS AND YOUR UNION. If there is such support, the employer is more likely to correct their unlawful activity without retaliation. The judge is more likely to rule in your favor if co-workers agree with you.

DOCUMENT EVERYTHING. What you do must not only be reasonable, it must be proven in court. Document the conduct or condition that you believe violates the law or a clear mandate of public policy. Take notes and get witnesses. Keep a copy of all letters. In court, the burden of proof is on you.

USE THE LEAST DISRUPTIVE MEANS when asserting your rights under CEPA. If you refuse work, make it clear to your employer that you are refusing only a particular job because it is unlawful or it poses an imminent risk of serious physical harm or death. Offer to perform other work. Always maintain a calm and reasonable tone. Remember, if you go to court, you must defend your actions as objectively reasonable.

If your employer retaliates:

Under CEPA, you may be able to recover compensatory and punitive damages, job reinstatement, attorney's fees and injunctive relief. A lawsuit under CEPA must be filed within one year.

Other Remedies

In addition to CEPA, you may be protected under a variety of other laws. Choosing the best remedy is a difficult choice, so you should seek the advice of an experienced employment law attorney (see below) and a knowledgeable union representative.

You may file a complaint under other state or federal statutes.* Some of these provide for administrative hearings. Others require going to court. Time limits vary but the complaint under many of these laws must be filed within 30 days. You may also file a lawsuit under New Jersey's common law, which must be filed within two years. Using these laws may preclude you from filing under CEPA.

You are more likely to resolve your claim sooner under the administrative proceedings, but you are less likely to receive the high monetary awards that courts sometimes provide. You may prosecute your case or you may reach a settlement without a lawyer. However, it is usually wise to retain a lawyer, particularly since your employer will certainly have one. Administrative proceedings are generally quicker than court proceedings under CEPA, largely because they do not include the extensive discovery proceedings provided by courts. However, the lack of administrative resources often limits these laws' effectiveness. An analysis of recent data for a seven-month period revealed that 74% of the 1,185 OSHA (Section 11(c)) complaints were either withdrawn by the complainant or dismissed by OSHA. An investigation under an administrative proceeding will influence the outcome of a lawsuit filed under CEPA or NJ's common law. You may also be protected by the National Labor Relations Act, especially if you acted with others.

You may also have a remedy pursuant to arbitration proceedings under your employment or union contract. The availability of arbitration under a contract may preclude you from suing under CEPA or other laws. Under most arbitration procedure for termination or discipline, the employer has the burden of proof, which makes success more likely. If your employer denies any adverse employment action or the presence of unsafe working conditions, however, the burden of proof may be on you. Monetary awards under arbitration may not be as large as under CEPA.

* Federal laws with administrative proceedings: OSHA (Section 11(c)), Surface Transportation Assistance Act, Asbestos Hazard Emergency Response Act, Clean Air Act, Comprehensive Emergency Response Compensation and Liability Act, Energy Reorganization Act, Federal Water Pollution Control Act, International Safe Container Act, Safe Drinking Water Act, Solid Waste Disposal Act, Toxic Substance Control Act. You should file your complaint with the local office of the Occupational Safety & Health Administration (OSHA). The complaint should be in writing and include a full statement of the acts and pertinent dates that are believed to constitute the violation.

Federal law requiring a lawsuit: Title VII of the Civil Rights Act.

New Jersey laws with administrative proceedings: Public Employees Occupational Safety & Health Act, Worker and Community Right to Know Act.

New Jersey law requiring a lawsuit: Law Against Discrimination.

*COURT DECISIONS RULING FOR EMPLOYEES WHO DID* THEIR HOMEWORK**
Mobil Corporation fired their chief toxicologist for telling fellow employees in Japan that they should stop selling gasoline with 5% benzene. The court relied on the following sources for evidence that 5% benzene in gasoline violates a clear mandate of public policy concerning the public health and safety: a Japanese environmental regulation, the Japanese Petroleum Association Guideline, and persuasive scientific evidence. Mehlman v. Mobil Oil Corporation, 153 N.J. 185 (1998). An industrial arts teacher was fired for reporting to his supervisor that his shop had inadequate ventilation. Although the teacher was not familiar with a specific regulation on ventilation, the court held that the teacher reasonably believed that poor ventilation violated a clear mandate of public policy because the ventilation was dangerous to health and safety of school children. Abbamont v. Piscataway Twp., 269 N.J. Super. 11 (App. Div. 1993). An employee was fired for refusing to "set up" a shop steward by planting an illegal object on him. The court relied on the following sources for evidence that the employee's refusal was valid on the basis of a clear mandate of public policy: National Labor Relations Act and the NJ Constitution protecting the right to organize and bargain collectively. Radwan v. Beecham Lab., 850 F.2d 147 (3d Cir. 1988).

COURT DECISION RULING AGAINST THE EMPLOYEE FOR NOT DOING THEIR HOMEWORK
A doctor refused to see patients because he was the only doctor available to treat about 300 patients at a nursing home. The nursing home fired the doctor for his refusal. The court ruled that the nursing home did not violate CEPA by firing him because there was no clear mandate of public policy that allowed him to refuse treatment. The court relied on the fact that he had a professional obligation to give treatment to the best of his ability despite the difficult circumstances. The court suggested that the doctor may have been protected if he had only reported the shortage of doctors in the nursing home. Fineman v. NJ DHS, 272 N.J. Super. 608 (App. Div. 1994).

COURT DECISION RULING AGAINST THE EMPLOYEE FOR NOT USING THE LEAST DISRUPTIVE MEANS
A blood bank employee was fired for intentionally destroying a blood bank sample to show his objection to and his refusal to participate in a hospital's dangerous identification practice. The court ruled that the employer did not violate CEPA by firing him because his actions were not reasonable and less disruptive means should have been used. Haworth v. Deborah Heart & Lung Ctr., 271 N.J. Super. 502 (App. Div. 1994).

Employers are required to conspicuously display a notice of employee rights, protections, and obligations under CEPA. N.J.S.A. 34:19-7.
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You can obtain a notice that satisfies the employer's requirement for posting from the N.J. Work Environment Council. To request a notice order form, contact us.
This is an educational fact sheet and is not intended to provide legal advice regarding any specific case.

This fact sheet was written by Andrew Reese of the New Jersey Work Environment Council. WEC thanks the following employment law attorneys for reviewing this fact sheet and WEC's CEPA compliance poster:
	Bennet D. Zurofsky of Reitman Parsonnet, P.C., 744 Broad Street, Suite 1807, Newark, N.J. 07102 (973) 642-0885.
	David Tykulsker of Tykulsker and Associates, 161 Walnut Street, Montclair, N.J. 07042 (973) 509-9292
Get further information on use of OSHA and other federal law anti-discrimination provisions from:
		William F. Boyle, Investigator, OSHA, (609) 231-6680 Pager, (609) 757-5087 Fax; or
		Richard Portius, Investigator, OSHA, (201) 288-1700 (Bergen and Passaic Counties)