The Elements of a Whistleblower Claim

New Jersey law protects whistleblowers against unlawful retaliation for their whistleblowing activity.  Specifically, the New Jersey Conscientious Employee Protection Act (CEPA) is the law that provides this protection.  Under CEPA, whistleblowing is defined as when an employee discloses or threatens to disclose his employer’s activity where the employee reasonably believes that the activity is a violation of a law or regulation, or when an employee refuses to participate in an activity that he believes is a violation of the law or against public policy.

 

In order to bring a successful CEPA claim, the employee must be able to prove several elements.  The first element is that the employee reasonably believed that his employer’s conduct violated a law, a regulation, or a clear mandate of public policy.  Although the employee does not have to have a correct belief that his employer’s activity is illegal or wrong, he must have a reasonable belief that it is.

 

The second element that an employee must prove is that his activity qualifies as a “protected activity” or “whistleblowing activity” under CEPA.  This means that the employee must show that he or she actually “blew the whistle” on his or her employer.  This can include disclosing or simply threatening to disclose the employer’s questionable conduct, or it can mean that the employee refused to participate in such conduct.  In either case, the employee’s whistleblowing activity must be performed in good faith.

 

The third element of a successful whistleblower claim is that the employee suffered a retaliatory action.  A retaliatory action can include termination, demotion, suspension, or any other adverse employment action taken against the employee.  This can include a single act or a series of acts, so long as the overall effect on the employee is adverse or negative.  Often times, direct proof of retaliation is not available, and therefore, employees are allowed to use circumstantial evidence to prove this element.

 

The final element of a CEPA claim that an employee must prove is that there is a causal link between his protected activity and the retaliation.  This means that the employee must be able to demonstrate that the retaliatory action more likely than not occurred because of his or her whistleblowing activity.  Even if the employer has multiple reasons for the adverse action taken against the employee, if whistleblowing played any role in the employer’s decision, the employee can successfully prove this element.

 

If an employee can prove all four elements of a whistleblower claim, he will likely win his case and may be entitled to damages.  Damages may include compensation for lost wages, back pay, front pay, and interest.  Depending on the circumstances of the case, a successful whistleblower claim may also entitle an employee to attorneys’ fees and punitive damages as well.