Articles Posted in Retaliation / Whistleblowing

Two weeks ago, the United States Equal Employment Opportunity Commission (EEOC) filed a retaliation lawsuit against New York based Fox News Network LLC, the company that owns and operates the Fox News Channel. According to the EEOC’s September 30, 2010 press release, the lawsuit alleges that Fox News retaliated against Catherine Herridge, one of its female news correspondents, after she complained about gender and age discrimination. The EEOC is a federal agency that helps employees enforce their rights under three anti-discrimination laws, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act.

In 2007, Ms. Herridge made several internal complaints that she was experiencing disparate pay and unequal employment opportunities because of her gender and age, the EEOC announced. Fox News conducted an investigation, but found no evidence of age or gender discrimination. In the fall or summer of 2008, several months after Fox News completed its internal investigation, Ms. Herridge refused to sign a new employment agreement with Fox News because it referred to her discrimination complaints. Fox News ignored Ms. Herridge’s requests to remove that language from her contract, and ignored her other attempts to negotiate her employment agreement. As a result, instead of entering into a new guaranteed employment contract, Ms. Herridge became an employee at-will. It was not until June 2009, after Ms. Herridge filed a charge of discrimination with the EEOC and the EEOC investigated that Fox News finally removed the language about Ms. Herridge’s discrimination complaints from her employment contract.

According to the EEOC’s press release, the lawsuit is seeking money damages to compensate Ms. Herridge for Fox New’s retaliation, as well as punitive damages and an injunction to prevent Fox News from engaging in further retaliation against employees who oppose discrimination. Discussing the lawsuit, EEOC attorney Lynette A. Barnes stated that “[t]he anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination.” Ms. Barnes further indicated that “[e]mployers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory.”

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On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Among its numerous provisions, the new law contains important economic incentives and legal protections for certain financial whistleblowers. As a result, it creates new employment law rights for employees in both New York and New Jersey.

New Economic Incentives for Whistleblowers

With some limited exceptions, if a whistleblower brings new information about a violation of the Dodd-Frank Act to the attention of the Securities and Exchange Commission (“SEC”), and the SEC recovers a monetary sanction of more than $1 million, then the whistleblower will receive between 10% and 30% of the sanction the SEC receives. In deciding the percentage the whistleblower will receive, the SEC is required to consider: (1) how significant the whistleblower’s information was to the successful recovery; (2) how much assistance the whistleblower (and any lawyer representing the whistleblower) provided to the SEC; (3) the benefit of deterring employers from future violations of the Dodd-Frank Act by giving financial incentives to whistleblowers; and (4) other relevant factors the SEC will establish through rules and regulations.

Earlier this year, the New Jersey Supreme Court ruled that an employer can violate the New Jersey Law Against Discrimination if it retaliates against an employee after it fires him. The Appellate Division decision reached the same conclusion in 2008, as discussed in a previous article. The New Jersey Law Against Discrimination prohibits employment discrimination, including harassment and discrimination based on gender, race, age, disability and religion. It also includes a provision that makes it unlawful for anyone to retaliate against someone because they objected to another actual or apparent violation Law Against Discrimination.

The case, Roa v. LAFE, involved a husband and wife who worked for Gonzalez and Tapanes Foods, Inc. (G&T), a New Jersey corporation which does business under the name LAFE Foods. The wife, Liliana Roa, claimed G&T’s Vice President, Marino Roa, had been involved in extramarital affairs with two other G&T employees. Liliana’s husband, Fernando Roa, eventually told Marino’s wife about the affairs. According to Fernando and Liliana, Marino then began a campaign of harassment against them, attempted to make their work lives miserable and threatened to fire both of them. When Fernando told G&T’s President that Marino was sexually harassing company employees, G&T ignored his complaint. G&T eventually fired both Fernando and Liliana.

Fernando and Liliana sued G&T and Marino for firing them in retaliation for Fernando’s complaint of sexual harassment. However, they filed their lawsuit more than two years after G&T fired them. As a result, the trial court dismissed their case because it was filed after the New Jersey Law Against Discrimination’s two year statute of limitations had expired.

Q. What is the Conscientious Employee Protection Act?

A. The Conscientious Employee Protection Act (CEPA) is New Jersey’s whistleblower law. It is one of the broadest anti-retaliation laws in the country. It provides broad protection to employees who report illegal and unethical workplace activities. Its primary purposes are to encourage employees to report illegal and unethical workplace activities, and to discourage employers from engaging in illegal and unethical conduct.

Q. Who is protected by CEPA?

On July 7, 2008, in the case of Roa v. LAFE, the New Jersey Appellate Division ruled that retaliation that occurs after an employee was fired can violate the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. The New Jersey Law Against Discrimination prohibits discrimination in employment, housing and places of public accommodation. It also includes an anti-retaliation provision that makes it unlawful for:

any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the New Jersey Law Against Discrimination]… or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the New Jersey Law Against Discrimination].

N.J.S.A. § 10:5-12(d).

Roa involved Fernando and Liliana Roa, a husband and wife who worked for LAFE, a New Jersey corporation. Liliani claimed that LAFE’s Vice President, Marino Roa, engaged in two extramarital affairs with employees of LAFE. Fernando eventually told Marino’s wife about the affairs. According to Fernando and Liliani, Marino then began a campaign of harassment against them. When Fernando told the president of LAFE that Marino was sexually harassing company employees, LAFE ignored his complaint. LAFE eventually fired both Fernando and Liliani.