A whistleblower is a person who exposes misconduct performed by or on behalf of their employer.
Misconduct that a whistleblower brings to light can be some sort of illegal activity, such as unlawful discrimination, tax evasion, fraud on the government, securities and banking improprieties, and other illegal trade practices. In other situations, whistleblowers disclose activity that is immoral, dishonest, fraudulent, unfair, or contrary to the public interest. Whistleblowers also often report violations of local health and safety standards, including an employer’s failure to take reasonable measures to protect workers or provide appropriate protective equipment.
Prohibiting Retaliation to Encourage Whistleblowing
Employers usually do not like when their misconduct or illegal activity is exposed. As a matter of public policy, in order to encourage workers to report improper conduct, whistleblowers are often protected against retaliation. An employer cannot fire, demote, refuse to pay, or take any other adverse employment action against a protected whistleblower in response to the report.
In order to be protected by the law, a whistleblower’s complaint must be based on a reasonable belief that their employer is engaged in an illegal or otherwise improper activity. Workers are also protected when they cooperate with investigative authorities, such as police departments and regulatory agencies, in the event that they are asked to assist in any proceeding or investigation against their employer.
How Does an Employee “Blow the Whistle”?
There are a variety of ways in which whistleblowers can come forward with information related to an employer’s illegal or unfair activities. Employees may make internal claims within their organization, or they may make external claims to regulatory agencies, law enforcement groups, or the media. Regardless of the reporting method used, the law protects whistleblowers as long as they make their report in good faith.
If you think your employer is guilty of misconduct or other illegal activity, you may be placed in a difficult situation. These tough situations require careful thought, and may also require legal advice. If you need help in determining whether you should report possible illegal activity, or if you need assistance in understanding your rights, an experienced employment attorney can help. With legal assistance, you can also protect your rights if your employer has unlawfully retaliated against you for your whistleblowing activity.
Elements of a NJ Whistleblower Claim
Specifically, the New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers against unlawful retaliation for their whistleblowing activity. CEPA defines whistleblowing 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 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 fourth and 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, they will likely win their case and may be entitled to damages. Damages may include compensation for lost wages, back pay, front pay, and interest. Depending on the circumstances, a successful whistleblower claim may also entitle an employee to attorneys’ fees and punitive damages as well.