Category Archives: Protected Activity

Is An Employee’s Good Faith Complaint To A Corporate Ethics Hotline Protected Against Retaliation?

UPDATED WHISTLEBLOWER PROTECTION IMAGE 11-20-2015

Certain federal laws call for corporate employers to establish Ethics & Compliance programs.  These programs typically promise to investigate and not to retaliate against employees who make internal ethics complaints in good faith.  However, courts usually protect employees from retaliation only if the substance of their complaint is “protected” under federal or state whistleblower protection laws.  Can anything be done about this apparent gap in anti-retaliation protection?

The answer can differ based on which anti-retaliation law is relied upon.  In Kasten v. St. Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the U.S. Supreme Court broadly construed the anti-retaliation protections of the Fair Labor Standards Act.  The Court held that oral complaints under the FLSA were protected so long as “a reasonable objective person would have understood the employee” to have “put the employer on notice that [the] employee is asserting statutory rights under the [FLSA].”  Id. at 1335.

Under New Jersey’s “CEPA” Whistleblower Protection statute, N.J.S.A. 34:19-1 et seq., our State Supreme Court imposed a fairly strict standard of conduct in a case involving healthcare patient safety.  Such a whistleblower must point to violation of a measurable regulatory standard in order to be protected from retaliation.  Heitzman v. Bridgeway, Inc., 218 N.J. 8, 35 (2014).  This follows a countervailing State policy not to protect “at will” employees’ complaints from retaliation unless they raise a “clear mandate of public policy.” As the Court stated in Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 109 (2008):

We do not intend to suggest that we will elevate an employee’s expression of purely personal viewpoints to a level that will preclude termination.  An employer remains free to terminate an at-will employee who engages in grousing or complaining about matters falling short of a “clear mandate of public policy” or who otherwise interferes with the ordinary operation of the workplace by expressions of personal views on matters of no real substance.  Baseless complaints or expressions of purely personal views about the meaning of public policies will not meet the test for a “clear mandate” regardless of the manner or mode in which they are voiced. (emphasis added)

Even if no clear mandate of State public policy is invoked, federal laws mandating establishment of corporate Ethics & Compliance programs should be reviewed for possible anti-retaliation protections.  And, under State law, grounds to enforce an employer’s promise not to retaliate should be evaluated as claims for breach of implied contract (absent a clear and prominent disclaimer) and promissory estoppel.

Stay tuned for future blog posts as we continue to explore courts’ protection of whistleblower complaints.

Suing Your Employer and Staying Employed – Part 2

Courtroom Witness Box
Photo by tracie7779 via flickr

Part I of this post concluded that New Jersey law  protects employees who sue their employer from retaliatory actions only if the subject of the lawsuit involves a clear mandate of public policy.   I now discuss a Third Circuit Court of Appeals ruling (covering NJ, PA and DE) as to whether a public employee is protected from retaliation based on having testified in court.

Continue reading Suing Your Employer and Staying Employed – Part 2

Suing Your Employer and Staying Employed? – Part 1

Office Building
Chris Bastian via flickr

Can you sue your employer in New Jersey and have a right not to be terminated because of the lawsuit? A not so recent Appellate Division case, Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 508 (App. Div. 1986), held that “[t]here is no statutory or regulatory proscription against a firing in retaliation for the institution of a civil action against the employer as a means of resolving a salary dispute.”  The court characterized the contractual salary dispute giving rise to the termination of plaintiff’s employment as “involv[ing] a matter having no significance beyond the private interests of plaintiff and defendant.”  Id. at 508.  Recently, an unreported Appellate Division ruling in  Perlman v. Kessler Institute, A-0642-07T2 (App. Div. May 9, 2008) concurred: “We see no reason to revisit this issue, and decline plaintiff’s invitation to overrule Alexander v. Kay Finlay Jewelers, Inc.”.

Continue reading Suing Your Employer and Staying Employed? – Part 1