STATUTES AND REGULATIONS

The New Jersey Law
Against Discrimination

If an employee falls victim to discrimination, sexual harassment and/or retaliation, and as horrible and depressing that employee may feel as a result, the employee will have one thing to smile about if the discrimination or sexual harassment occurred when the employee is employed in New Jersey. The New Jersey Law Against Discrimination (LAD) is considered one of the most aggressive anti-discrimination statutes in the country. Courts in New Jersey continually recognize that the New Jersey Legislature enacted this statute for the specific purpose of eradicating the cancer of discrimination in the workplace. The LAD is considered such a powerful statute that attorneys in New Jersey do not even consider filing a complaint in federal court. In fact, legal scholars in New Jersey consider the filing of a discrimination lawsuit in a New Jersey federal court legal malpractice. Filing a LAD claim in a New Jersey State court is generally the best option. For this reason, the EEOC is New Jersey is generally not utilized. In essence, with respect to the three major federal anti-discrimination statutes: Title VII, the ADEA and the ADAAA (formerly known as the ADA), consider all of them combined, with no minimum number of employees and no cap on punitive and compensatory damages.

That, in essence, is the LAD. So long as a New Jersey employee files a lawsuit in a New Jersey State court within two years of the discrimination, harassment or retaliation by the employer, the employee can take full advantage of all of the benefits which the LAD has to offer. The protections available under the LAD are also much more expansive than those offered pursuant to the federal laws. Pursuant to Title VII, the ADEA and the ADAAA (formerly known as the ADA), the following is protected: race, color, religion, sex, national origin, age and disability. The LAD offers protection for each of those protected classes and also protects against discrimination based on ancestry, sexual orientation, services in the armed forces, atypical hereditary cellular or blood trait, marital status, domestic partnership status and civil union status.

The Conscientious Employee
Protection Act

The Conscientious Employee Protection Act (“CEPA”), which is only available in New Jersey, has been described as one of the most far reaching whistle-blower protection laws in the country. It protects employees from retaliation for disclosing illegal conduct, testifying before a public body and for refusing to participate in an unlawful activity. The most popular of these three categories is “objection and refusal to participate,” with “disclosure of illegal activity” a distant second.

Under the category of Disclosure of Illegal Activity, CEPA prohibits employers from retaliating against an employee because the employee discloses, or threatens to disclose, an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, rule or regulation. The key phrase in this definition is “that the employee ‘reasonably believes’ is in violation of a law, rule or regulation.” This means that the employee can be wrong, i.e., the employer may not have necessarily acted in violation of a law, rule or regulation and, even if the employee is wrong, he/she can still have a case, so long as he/she “reasonably believed” the employer violated a law, rule or regulation. But see the April 9, 2012 blog referencing the Wachovia employee who was fired over porn. In that matter, an appeals court overturned a 3.6 million dollar verdict because, as the Court determined, the employee failed to show that he had a reasonable belief that Wachovia was acting in a fraudulent manner or that he was acting as a whistleblower.

Under Objection and Refusal to Participate, CEPA prohibits employers from retaliating against employees who object to, or refuse to participate in any activity, policy or practice which the employee reasonably believes, one, is in violation of a law, rule or regulation or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care, two, is fraudulent or criminal, or three, is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

Once again, the test is not whether the employer violated the law, committed fraudulent or criminal acts, etc., but rather it is what the employee reasonably believed. Many cases fall under this category as there are many occurrences in which an employer asks an employee to do something. If the employee objects to it, or refuses to participate, based upon any of the three numerated sub-categories above, and then something happens to the employee’s employment, this often constitutes a CEPA case.

One very important thing to remember – an individual only has one year (statute of limitations) from the adverse action (termination, etc.) to file a CEPA complaint in Court. As a result, it is imperative to consult with an attorney as soon as possible following your termination or other adverse action regarding your employment. As damages include, but are not limited to, back pay, front pay, emotional distress and punitive damages, call Marc W. Garbar, Esq. today.

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