Do You Have to Allege That Your Employer Violated a Specific Law or Policy in Order to Bring A Whistleblower Claim?

The New Jersey Conscientious Employee Protection Act, or “CEPA”, makes it illegal for an employer to terminate or otherwise retaliate against an employee who objects to, or refuses to participate in, activity which the employee reasonably believes is:

  • Fraudulent or criminal; and/or
  • In violation of a law or regulation; and/or
  • Incompatible with a clear mandate of public policy.

Notably, there is no requirement under CEPA that the employee prove his/her employer actually committed fraud, violated the law, or contravened public policy, in order to bring a claim.  Instead, all CEPA requires is that the employee “reasonably believes” the employer did so.

What do courts consider to be a “reasonable belief” to support a CEPA claim?

This raises an important question: What do courts consider to be a “reasonable belief” of fraudulent or illegal activity to support a CEPA claim? Does a whistleblowing plaintiff have to allege he or she thought the employer was violating a specific law or statement of public policy?

In the recent case of Chiofalo v. State (A-30-18/081607), the New Jersey Supreme Court answered in the negative.  The court held CEPA plaintiffs do not have to cite to a particular law or policy they believe their employer contravened.  However, in discussing the issue, the court advised it certainly helps plaintiffs greatly if they can and do cite to such a law or policy.

In Chiafalo, the whistleblowing plaintiff was New Jersey state police officer who served as an Administrative Officer for his troop.  This role required him to collect and log documents and communications to and from the troop. In 2012, two members of the plaintiff’s troop participated in an unauthorized, high-speed police escort of luxury sports cars on the Garden State Parkway, which subjected them to internal review.  One of the civilian sports car owners sent a thank-you letter to one of the escorting troopers, which was forwarded to the plaintiff. However, when the plaintiff presented the letter to his supervisor, his supervisor told him “it doesn’t exist.” The plaintiff understood his supervisor was directing him to destroy the letter, which the plaintiff believed to be criminal or fraudulent activity.  He responded, “I’m not going to get rid of it.” Subsequently, the plaintiff was transferred to a less desirable assignment and blocked for promotion. He then filed a CEPA claim against the state police, alleging that he was retaliated against for refusing to participate in what he reasonably believed to be “fraud” or illegality.

The case ultimately went to trial and a jury decided in favor of the plaintiff.  On appeal, however, the state police argued that the jury’s verdict should be reversed because the plaintiff never cited to the specific terms of a statute or regulation, or the clear expression of public policy, which he believed the state police violated in allegedly directing him to destroy the letter.  The appeals court agreed and reversed, then prompting the plaintiff to appeal.

The New Jersey Supreme Court cautions employees bringing whistleblower suits

In deciding for the plaintiff, the New Jersey Supreme Court rejected the idea that CEPA requires whistleblowers to identify a particular statute or regulation believed to render the employer’s activity unlawful.  Still, the court had some cautionary words for employees bringing whistleblower suits (and their lawyers):

  • “That being said, the better practice in CEPA actions . . . surely is to identify the statutory or other basis for claiming objected-to behavior is criminal or fraudulent.”
  • “We do not expect whistleblower employees to be lawyers on the spot; once engaged in the legal process, and with the assistance of counsel or careful examination by the court, however, the legal underpinnings for claimed behavior that is perceived as criminal or fraudulent should be able to be teased out sufficiently for identification purposes.”

Indeed, the Court noted that plaintiff’s amicus counsel had identified the state police’s directive to destroy documents in violation of the New Jersey Destruction of Public Records Law.

Given the foregoing, then, if you are serious about pursuing a whistleblower claim, you would be wise to do the following:

Get a second opinion.  Sometimes employer activity is clearly unlawful or fraudulent on its face.  For instance, an office employee for a medical practice asked by the doctor-owner to submit insurance claims for procedures that were never performed certainly has a “reasonable belief” that such activity amounts to insurance fraud.  However, less clear-cut cases may require checking in with a trade or professional organization, or governing state or federal agency, for advisement on whether your employer’s conduct is illegal or merely distasteful.

Contact an attorney. Legal counsel can often advise you whether your belief that your employer is engaged in illegal or fraudulent activity is “reasonable” or not.  More importantly, an attorney can provide guidance on exactly how and when you should protest and object to your employer’s conduct, if necessary.

If you believe you have a whistleblowing claim against your employer, call our offices today for a free consultation.

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