Retaliation / Whistleblowing

Appellate Division Reinstates Employee’s Whistleblower Claim

April 4, 2022 | by Jonathan I. Nirenberg

In a recent opinion, New Jersey’s Appellate Division reinstated Margaret Gatham’s whistleblower claim against Care One Management, LLC, its Executive Vice President, Elizabeth Straus, and its Deputy General Counsel, Thomas A. McKinney.

Ms. Gatham worked for Care One from 2005 until she resigned in July 2012. In 2015, Care One’s Chief Strategy Officer, Timothy Hodges, contacted her to discuss her potentially returning to Care One based on her past success turning the facility around, including her success collecting money. In August 2015, Ms. Gatham returned to Care One as its Director of the Shared Business Office.

In approximately September 2015, Ms. Gathman discovered that Care One had failed to return to Medicare, Medicaid and other entities and individuals, overpayments and security deposits for residents who had died, in violation of the Affordable Care Act. In early 2016, Ms. Gatham reported this issue to her immediate supervisor. Ms. Gatham came up with a plan for Care One to return the money. Ms. Gatham indicated she was concerned about the company’s failure to return those funds, which she estimated could have been $13 million. She also periodically updated members of the company’s senior management, including Ms. Strauss, about those plans.

New York State Finally Enacts Broad Whistleblower Law

November 22, 2021 | by Jonathan I. Nirenberg

On October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection. That will change when the amendment goes into effect on January 26, 2022.

New Protected Activities

New Jersey Law Prohibits Retaliation Against Employee Who Refused to Lie in Sexual Harassment Lawsuit

April 22, 2020 | by Jonathan I. Nirenberg

Last week, the New Jersey’s Appellate Decision recognized that an employer cannot retaliate against an employee because he refused to lie to support the company defend against another employee’s sexual harassment lawsuit. While that might seem obvious, the twist is that the employee alleging retaliation did not even know the other employee’s case involved sexual harassment.

Emiliano Rios is an emergency medical technician (“EMT”). He worked for Meadowlands Hospital Medical Center as the Supervisor of the Emergency Medical Services Department (“EMS”).

In April 2014, one of Mr. Rios’s coworkers, Heatherlee Bailey, filed a sexual harassment lawsuit against the hospital. However, Mr. Rios was completely unaware that Ms. Bailey had been sexually harassed.

New Jersey Anti-Discrimination Law Prohibits Firing Employee for Refusing to Sign Arbitration Agreement

June 6, 2018 | by Jonathan I. Nirenberg

Arbitration is widely considered to be less favorable to employees and more favorable to businesses than jury trials. As a result, many employers require their employees to sign arbitration agreements as a condition of getting hired or keeping their jobs. In other words, employers try to force employees to give up their right to sue in court and have their cases decided by a jury.

But a recent trial court opinion concludes that firing an employee because she refused to sign an arbitration agreement since she did not want to give up her right to a jury trial in any future discrimination lawsuit against her employer was an act of retaliation in violation of the New Jersey Law Against Discrimination (“LAD”). The LAD prohibits employers from retaliating against an employee because she has “opposed any practice” protected by the LAD, or from coercing, intimidating or threatening anyone’s right pursuant to the LAD.

Jorvia Cator, an African American woman, began working for WRDC Corp. as a hotel reservation agent in March 2016. Approximately one month later, WRDH implemented a new policy which required all employees to sign arbitration agreements that forced them to bring virtually any claim against the company in arbitration rather than in court. Those agreements expressly stated that the employee is waiving her right to a jury trial.

New Jersey’s Whistleblower Law Prohibits Retaliatory Transfer to Less Desirable Job

June 1, 2018 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit. He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad. Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

The trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits. Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case. Det. Scozzafava appealed.

Court Extinguishes Volunteer Firefighter’s Whistleblower Claim

October 13, 2017 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that volunteer firefighters are not protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), because they are not “employees.”

For 20 years, Jeffrey Sauter served as a volunteer firefighter for the Township of Colts Neck, Fire Company No. 2. Although he was not paid any wages for his services, he earned between $400 and $1,500 in deferred compensation benefits per year under the Emergency Services Volunteer Length of Service Award Program (“LOSAP”).

In 2004, Mr. Sauter filed another CEPA lawsuit against his fire company, claiming it suspended him for 18 months in retaliation for complaints he made about the bidding process relating to renovations of the fire hall. He eventually settled that case for $10,000, including attorney’s fees. Nonetheless, Mr. Sauter believed the fire company owed him another $8,000 for his legal fees.

CEPA Prohibits Employer from Retaliating Against Attorney For Refusing to Violate Ethics Rule

August 3, 2017 | by Jonathan I. Nirenberg

On July 25, 2017, the United States Court of Appeals for the Third Circuit recognized that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), prohibits an employer form retaliating against a lawyer because he refused to engage in an activity he reasonably believes violates attorney ethics.

Steven Trzaska worked as a patent lawyer for L’Oréal USA, Inc. The company’s French parent company, L’Oréal, S.A., instituted a quota for the number of patents applications each patent team had to reach, and warned employees that if they did not meet their quota “there would be consequences which would negatively impact their careers and/or continued employment.” In 2014, L’Oréal set a quota of 40 patents for Mr. Trzaska’s team. However, Mr. Trzaska and his team did not believe there were 40 patentable products for which they could file patent applications in good faith.

Like all lawyers, Mr. Trzaska is bound by Rules of Professional Conduct (“RPCs”). For example, one such rule established by the United States Patent and Trademark Office (“USPTO”) prohibits patent lawyers from making frivolous or bad-faith patent applications. Likewise, an applicable Pennsylvania RPC prohibits lawyers from making false statements to a court or tribunal such as the United States Patent Office.

Court Overturns Jury Waiver and Fee Award to Employer Under CEPA

February 14, 2017 | by Jonathan I. Nirenberg

In a recent published opinion, New Jersey’s Appellate Division reversed a trial court’s rulings that an employee had waived his right to a jury trial under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Greg Noren worked as a Relationship Manager for Heartland Payment Systems, Inc. for more than seven years. During that time, he signed two employment agreements that indicated he waived “any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.” Both contracts also included provisions stating that, in any lawsuit “arising out of or related to this Agreement, the successful party shall be awarded . . . costs of suit, fees of experts and reasonable attorneys’ fees against the unsuccessful party.”

After Heartland fired him, Mr. Noren filed a lawsuit in which he claimed the company had breached his employment agreement and retaliated against him in violation of CEPA.

Third Circuit Reinstates Police Officers’ Whistleblower Case

November 28, 2016 | by Jonathan I. Nirenberg

A recent case from the Third Circuit Court of Appeals reinforces the fact that an employee who objects to something he reasonably believes violates the law does not have to be correct to be protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Police Officers Anthony Galiazzi, Charles Holland and John Williamson work for the Camden Police Department. They objected to the department’s “directed patrols” policy because they believed it violated New Jersey’s anti-quota law. Under Camden’s policy, police officers were required to speak to at least 18 (and in some instances at least 27) residents per shift for up to 15-20 minutes each.

Officers Galiazzi, Holland and Williamson objected to the directed patrols policy because they believed it violated New Jersey’s anti-quota law, which prevents police departments from requiring police officers to issue a minimum number of arrests or citations. Among other things, they claim Camden retaliated against them in violation of CEPA by transferring them from the elite unit to regular patrol duty, reducing their salaries, taking away vacation, placing limits on their sick leave and having the Internal Affairs unit investigate them.

Federal Labor Laws Do Not Preempt Union Members Whistleblower Claim

September 1, 2016 | by Jonathan I. Nirenberg

In an important employment law decision, last month the New Jersey Supreme Court ruled that an employee can pursue a retaliation claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”) even though his alleged whistleblowing activity has some relationship to his rights under the collective bargaining agreement (“CBA”) between his employer and his union.

Salvatore Puglia worked for Elk Pipeline, Inc. He was a union member who was subject to a CBA. Mr. Puglia and one of his coworkers complained to their supervisor when the company cut their salary in half. They eventually asserted that Elk was violating New Jersey’s Prevailing Wage Act, a wage and hour law that entitles certain employees assigned to public works jobs to be paid a specific legally-established minimum hourly rate. Mr. Puglia also complained to the company’s president about this violation of law.

Eventually, Elk resumed paying Mr. Puglia and his coworkers their full salary. However, the company failed to pay Mr. Puglia all of the back pay he was owed. According to Mr. Puglia, when he objected about this the company’s president warned him to “either be quiet and keep [his] job or be laid off.”