Whistleblower

Teacher’s Objection to Inadequate Discipline of Student for Threatening Violence Can be Protected by CEPA

November 12, 2024 | by Jonathan I. Nirenberg

In a recent unpublished opinion, New Jersey’s Appellate Division found a teacher’s objection that his school did not sufficiently discipline a student for threatening to shoot another student could be protected from retaliation by the Conscientious Employee Protection Act (“CEPA”).

CEPA is a broad New Jersey whistleblower law that prohibits employers from retaliating against an employee for, among other things, objecting to an activity or practice of the employer that the employee reasonably believes violates a law, a rule promulgated pursuant to law, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

Phillip Eisenstein is a physical education teacher for the New York Avenue School in Atlantic City. He witnessed a student, K.D., bullying other students. After Mr. Eisenstein intervened, K.D. threatened to get his uncle’s gun and come back the next day to shoot one of the other students. Mr. Eisenstein reported this to the school’s principal, who said he would handle it.

Court Recognizes New Jersey Law Against Discrimination’s Broad Definition of Disability

August 1, 2024 | by Jonathan I. Nirenberg

In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability discrimination to be protected by the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Bart Algozzini, who worked for DGMB Casino, LLC doing business as Resorts Casino Hotel (“Resorts”) as its Director of Slot Operations. Mr. Algozzini took a medical leave after he suffered second and third-degree burns over seventy percent of his body after his boat exploded. He was hospitalized for a month, during which he was placed in a medically-induced coma for more than two weeks. After leaving the hospital, he was in a rehab facility for a week-and-a-half, followed by over three months of outpatient physical therapy sessions.

While Mr. Algozzini was on his medical leave, Resorts eliminated his position as the Director of Slot Operations and instead created two new positions: Slot Service Manager and Slot Technical Manager. Resorts gave Mr. Algozzini the position of Slot Service Manager, a job with fewer responsibilities and that paid $23,000 less per year than his former position as its Director of Slot Operations. Resorts did not eliminate any other positions at that time.

Timing Between Protected Activity and Adverse Employment Action Supports Whistleblower Claim

June 4, 2024 | by Jonathan I. Nirenberg

A recent unpublished opinion from New Jersey’s Appellate Division overturned a trial court decision dismissing his whistleblower claim under the Conscientious Employee Protection Act (“CEPA”). The case serves as a reminder that close timing between a legally-protected activity and an adverse employment action can be powerful evidence to support a retaliation claim.

Joseph Silvestri was the Director of Information Technology (“IT”) for the Borough of Ridgefield. When he discovered that someone had tampered with the Lightning Alert System at Willis Park, he reported it to the Ridgefield Police Department. Paul Schaeffer, who is friends with a Ridgefield Councilman, Javier Acosta, was charged with tampering with the Lightning Alert System. Mr. Silvestri subsequently was subpoenaed to testify in Mr. Schaeffer’s municipal court case, and was present in court for the trial, but did not actually end up testifying.

Shortly thereafter, the Ridgefield Council President, Russell Castelli, told Mr. Silvestri that he is not entitled to receive overtime compensation because he is the head of the IT Department. Until then, Mr. Silvestri had been eligible to receive overtime compensation for approximately 20 years. According to Mr. Silvesti, Councilman Acosta caused Ridgefield to stop compensating him for his overtime.

Court Reinstates Employee’s Retaliation Lawsuit, Finding Employer Could Have Identified Her as Anonymous Whistleblower

October 23, 2023 | by Jonathan I. Nirenberg

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative. In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her. Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

Resigning to Avoid Participating in Illegal Activity Can Be Protected Under CEPA

August 1, 2023 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division decision recognizes that, under the right circumstances an employee can be protected by the Conscientious Employee Protection Act (“CEPA”) when she resigns because she is not willing to participate in her employer’s illegal conduct. CEPA is New Jersey’s whistleblower law, which many courts have described to be the broadest such law in the nation.

Hope Moser worked for the Streamwood Company as the assistant property manager at the Madison Court apartments. Her immediate supervisor, Scott Leonard, was Streamwood’s regional manager and the son of Streamwood’s owner.

In January 2021, Mr. Leonard told Ms. Moser that she should check “no” on all housing screening forms in response to the question whether the form was being completed as a Section 8 housing application. Ms. Moster objected because she believed doing so would violate the New Jersey Law Against Discrimination (“LAD”), which prohibits housing discrimination against prospective Section 8 tenants.

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.

Employer Too Late to Compel Arbitration in Whistleblower Lawsuit

February 9, 2022 | by Jonathan I. Nirenberg

In a recent employment law case, New Jersey’s Appellate Division ruled that an employer had waived its right to compel arbitration by waiting 10 months before it sought to do so.

Tevin Welcome worked as a van driver for Huffmaster, Inc. Before Huffmaster hired him, Mr. Welcome completed an online application. The application included an arbitration provision, which indicated that if he accepted a job with the company, then he would have to resolve any dispute with the company, including claims of discrimination or retaliation, through arbitration instead of in court.

When Huffmaster hired Mr. Welcome, he moved from Texas to New Jersey for the job. However, he quickly discovered that few of his coworkers and the clients who rode in the van he drove complied with New Jersey’s COVID-19 mask mandate. Mr. Welcome was particularly concerned that he could get COVID and give it to his six-year-old son who has health problems.

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.

Discrimination and Retaliation Claims During the COVID-19 Pandemic

April 6, 2020 | by Jonathan I. Nirenberg

Our New Jersey employment lawyers understand that times are extremely difficult for pretty much everyone right now. But, fortunately, you still have significant rights in the workplace.

Being sheltered in place or quarantined and having to engage in social distancing have become the new normal. The economy has taken an enormous hit, and things that used to be simple like buying groceries and finding supplies like toilet paper and paper towels suddenly have become challenging.

Your Employment Law Rights Are Not on Hold