by Sandro Polledri, Esq., Genova, Burns & Vernoia
The New Jersey Supreme Court has described the state’s Conscientious Employee Protection Act (CEPA) as “the most far reaching ‘whistle-blower statute’ in the nation.”
Since 1986, CEPA had made it illegal for New Jersey employers to retaliate against any employee who discloses the employer’s illegal conduct, provides evidence about such conduct, or simply objects to conduct that the employee reasonably believes is illegal.
Regarding that last point, a recent New Jersey Supreme Court case shows that employees don’t have to prove their employer committed an actual violation or incompatibility with a statute, rule or mandate of public policy. Instead, it is enough for an employee to show that he or she had an “objectively reasonable belief” that such a violation or incompatibility existed.
Case in point
Angelo Maimone worked as a detective in the Atlantic City Police Department’s special investigations unit, assigned to investigate prostitution and sexually oriented businesses. After performing this role for 10 years, Maimone was told to stop and focus exclusively on narcotics cases. Since he was the only detective working on prostitution and sexually-oriented business crimes, this new directive, according to Maimone, meant the city would ignore those types of crimes.
He sent a memo to his supervisor complaining about the city’s failure to enforce the statute that made it unlawful to operate a sexually-oriented business close to a school or church. A few days after he sent the memo, Maimone’s supervisor told him, “You’re out of here, you’re going to patrol.” He was transferred back to the patrol division and forced to take a 3 percent salary cut and lose other benefits.
Maimone filed suit under CEPA. In its defense, the city argued that its actions were a discretionary decision to better allocate law-enforcement resources. According to the city, even if its decision could be characterized as a failure to enforce certain laws, it would still not amount to a CEPA violation because no law or public policy prohibited the city from exercising discretionary judgment.
The city asked the court to dismiss the charges. But, in a 6-to-1 ruling, the New Jersey Supreme Court rejected its argument and sent the case to trial.
According to the majority opinion, since Maimone complained about the “cessation” of investigations of prostitution and sexually oriented businesses, and there were criminal laws on the books prohibiting that conduct, he could have formed an objectively reasonable belief that the city’s failure to enforce the law was a violation of public policy.
The court saw the city’s actions as refusal to enforce certain criminal laws, not the simple reallocation of resources the city claimed. (Maimone v. City of Atlantic City 188 N.J. 221, 2006)
Practical tips
CEPA issues present a unique challenge for employers. Unlike in other discrimination or civil rights claims, employees can actually make themselves members of a protected class—and gain protection under the law—by making a complaint that meets the statute’s requirements.
The CEPA dilemma arises if there is a need to discipline or reprimand the employee for reasons unrelated to the “whistle-blowing,” such as unsatisfactory job performance, poor attendance or misconduct. If the employer imposes disciplinary action or discharges the employee after the employee complains about CEPA-protected activity, the employee may argue he or she is the victim of retaliation and file a lawsuit.
To defend against such a claim, employers should point to facts and evidence showing that the reasons for imposing discipline were separate and apart from the whistle-blowing.
Document thoroughly. All terminations and disciplinary actions must be thoroughly documented. To the extent possible, base all disciplinary decisions on objective, measurable evidence (lowered production, excessive absenteeism, etc.).
Employers should be prepared to show the court a pattern of bad behavior, reprimands and attempts to counsel the employee before the employee reported unlawful activity. If you have such documentation, you might be able to argue that the two actions were separate and unrelated.
Take whistle-blowing allegations seriously. Any allegation should be thoroughly investigated according to the company’s existing policies and procedures. By honestly appraising the allegations while documenting the employee’s performance, you show that both processes are fair and transparent.
Watch your timing. Finally, the timing or “temporal connection” between the whistle-blowing and the alleged retaliation is important. If enough time separates the employee’s report and the discipline, the court might be less likely to conclude that the employer was retaliating.
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Sandro Polledri, Esq. is a partner and certified civil trial attorney at Genova, Burns & Vernoia (www.gbvlaw.com), a New Jersey-based law firm with offices in Livingston, Red Bank, Camden, New York and Philadelphia. He can be reached at (973) 533-0777 or spolledri@gbvlaw.com.
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