Sometimes employees believe that reporting potential wrongdoing by their employers or fellow employees means they can’t be punished. In effect, the assumption is that being a whistle-blower gives them a pass and protects them from adverse employment actions, such as termination.
That’s simply not true. Under the New Jersey Conscientious Employee Protection Act (CEPA), employees who report illegal or unethical workplace activities can claim retaliation if the reporting employee:
- Reasonably believes the activity he reported violates the law or regulations, or is fraudulent or criminal, and
- Had an adverse employment action taken against him, and
- There is a connection between the whistle-blowing and the adverse employment action.
Your best protection against a CEPA lawsuit is to show that the adverse employment action is legitimate and not related to any whistle-blowing.
Recent case: Carlos Dominguez began working for Costco as a loss-prevention supervisor. He immediately had punctuality and attendance problems and was fired after racking up the maximum write-ups within a six-month period.
Dominguez sued, alleging he had reported lunch-break violations by one of the managers who wrote him up, other managers for allowing day-old goods to be donated to charity, and yet another manager for selling bootleg DVDs to other employees.
But Costco argued none of the supervisors who wrote up Dominguez knew about his allegations. That had to mean there was no connection between the blown whistle and his termination. The court agreed and dismissed the case. (Dominguez v. Costco, No. 09-1888, 3rd Cir., 2009)
Final note: Having solid, legitimate reasons for is always the best defense.
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- If possible, have the manager who hired the employee also do the firing