Articles Posted in Retaliation

When a business engages in fraudulent, unlawful, or criminal activities, employees with inside knowledge of those activities are often the best source of information and evidence. Employees who object to their employers’ conduct might not want to come forward, though, if they could lose their jobs or suffer other employment consequences as a result. New Jersey employment laws at the state and federal levels work to protect these employees, commonly known as “whistleblowers,” by holding employers liable for retaliation. The U.S. Supreme Court recently ruled in Murray v. UBS Securities, a whistleblower case brought under the Sarbanes-Oxley Act of 2002 (“SOX”). This is a federal statute that applies to the financial sector. The court affirmed a trial court’s ruling in the employee’s favor and clarified the burden of proof under the statute.

Congress enacted SOX in response to a series of corporate scandals. The statute addresses recordkeeping and financial disclosure by publicly-traded corporations. It imposes civil and criminal penalties for violations and provides whistleblower protections to encourage employees to report concerns. It prohibits retaliation against employees who engage in certain activities, including:
– Assisting or participating in an internal investigation of suspected wrongdoing under federal fraud statutes or securities regulations;
– Assisting or participating in an investigation by the Securities and Exchange Commission (SEC), Congress, or another federal agency involving alleged fraud or securities violations; and
– Filing a complaint with the SEC.

An employee who alleges unlawful retaliation may bring a lawsuit against their employer after filing a complaint with the Secretary of Labor. The plaintiff has the burden of making “a prima facie showing that [their protected conduct] was a contributing factor in the unfavorable personnel action.” The defendant can obtain dismissal of the lawsuit if it can “demonstrate[], by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of that behavior.” This burden of proof was a significant part of the dispute before the Supreme Court in Murray.
Continue reading

Harassment in the workplace violates federal and New Jersey employment laws in certain circumstances. The harassment must be based on a protected category like race, sex, or religion. It must negatively impact someone’s employment, such as when it creates a hostile work environment. The Equal Employment Opportunity Commission (EEOC) investigates alleged harassment that violates federal employment laws like the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. In October 2023, the agency issued a new proposed guidance document on unlawful workplace harassment and sought comments from the public. Should the EEOC decide to issue a final guidance document, it would be the first significant update to its guidance in over twenty years.

When Is Harassment Unlawful?

Offensive conduct rises to the level of unlawful harassment in several situations. First, the conduct must be motivated by a protected characteristic like race or sex. Second, one of the following must apply:
– A worker must endure offensive, unwelcome conduct to maintain their employment;
– The conduct is so severe or pervasive that a reasonable person would consider the work environment to be hostile; or
– The conduct is intended to retaliate against a worker for legally protected activities like reporting alleged discrimination.

What Kinds of Conduct Can Constitute Harassment?

A wide range of behaviors can constitute harassment, including offensive jokes or comments, offensive images or gestures, ridicule, intimidation, threats, or physical assault. It can come from managers, supervisors, co-workers, and non-employees like contractors or customers.
Continue reading

Employees who suspect that their employers are engaging in unlawful acts might hesitate to report what they know for fear of losing their jobs. Federal and New Jersey employment laws address those concerns by prohibiting employers from retaliating against employees, commonly known as whistleblowers, who voice their concerns about allegedly unlawful practices. The federal False Claims Act (FCA) gives whistleblowers an added incentive to go public in cases involving alleged fraud against the federal government. An employee can file a qui tam lawsuit under the FCA on behalf of the United States. The employee is entitled to a percentage of the settlement or award in the case. A lawsuit currently pending in a New Jersey federal court involves a hospital administrator who alleges that his now-former employer defrauded a COVID-19 relief program.

The FCA establishes a civil penalty of $5,000 to $10,000 for various types of false claims and other fraudulent activities targeting the federal government. The government may file suit under the FCA. An individual, known as the “relator,” may file suit on the government’s behalf. Relators are often employees with knowledge of alleged wrongdoing by their employers. The government can intervene and take over the case from the relator. If the government declines to intervene, the relator may continue pursuing the lawsuit on their own.

The relator is entitled to a percentage of any recovery in the lawsuit, whether it comes from a settlement or an award after a trial. If the federal government intervenes and takes over the case, the relator may receive fifteen to twenty-five percent. They are entitled to twenty-five to thirty percent if they pursue the case themselves.
Continue reading

The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
Continue reading

Employees who suspect wrongdoing by their employers might not report their concerns if they fear losing their jobs. New Jersey employment laws seek to protect these employees, commonly known as whistleblowers, by prohibiting retaliation by their employers. Laws at the state and federal level allow employees to file civil suits for monetary damages and other forms of relief, often including reinstatement, if their employers take adverse action against them because of whistleblowing activities. A lawsuit pending in a New Jersey federal court alleges that an employer unlawfully retaliated against the plaintiff for reporting concerns about an executive’s conduct at an industry conference.

The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers in various situations, including reporting suspected illegal activity to a supervisor. The New Jersey Law Against Discrimination (NJLAD) bars employers from “tak[ing] reprisals” against employees who report or oppose unlawful discrimination or harassment. These laws protect a wide range of conduct aimed at opposing alleged violations of criminal and employment statutes.

According to the complaint, the defendant is a “global trading firm” that works with cryptocurrency. It has headquarters in Jersey City, London, and Tokyo. The plaintiff states that he worked for the defendant in Jersey City as its “Global Head of Options Trading – Americas.” He alleges that he “was a valued, well-respected employee and contributing team member,” and that he contributed to millions of dollars in profits for the defendant.
Continue reading

The Americans with Disabilities Act (ADA) of 1990 protects employees and job seekers throughout the country from discrimination, harassment, and other acts because of a disability. It also requires employers to make reasonable accommodations that can allow employees with disabilities to perform their job duties. New Jersey employment law also protects against disability discrimination and mandates reasonable accommodations. In July 2023, the Equal Employment Opportunity Commission (EEOC) issued an updated guidance document regarding visual disabilities under the ADA. In addition to reasonable accommodations, the document addresses what employers may and may not ask employees and job applicants with regard to visual impairments.

Visual Disabilities Under the ADA

The ADA’s definition of “disability” involves conditions that “substantially limit[] one or more major life activities,” as well as a record or perception of having such a condition. The definition of “major life activities” includes “seeing.”

The EEOC takes a broad view of whether a visual impairment meets the “substantially limits” standard. If someone’s vision is “substantially limited when compared to the vision of most people in the general population,” it will consider that person to have a disability as defined by the ADA. This does not, however, include people who are able to function with “ordinary eyeglasses or contact lenses.”
Continue reading

Laws that protect employees’ rights can only be effective if workers feel confident that they can assert their rights without suffering even worse consequences from their employers. A worker who believes their employer has violated the law will not be likely to make a complaint if their employer can demote or fire them in retaliation and with impunity. Workers will hesitate to exercise their rights to engage in labor organizing if nothing is stopping their employers from retaliating against them. Federal and New Jersey employment laws include provisions that bar employers from discriminating or retaliating against workers who engage in protected activities. A New Jersey federal court recently granted a temporary injunction in a lawsuit brought by the National Labor Relations Board (NLRB) on behalf of several workers who alleged wrongful termination. The court ordered their employer to reinstate them.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing for the purpose of collective bargaining with their employers. Section 8(a)(1) of the statute prohibits employers from interfering with workers who are engaging in protected activities. Section 8(a)(3) bars discrimination against workers who have joined unions or participated in organizing. The NLRB has authority under § 10(j) of the NLRA to file lawsuits seeking injunctions to prevent or remedy violations of workers’ rights.

The defendant in the NLRB lawsuit operates a commercial cleaning business. According to the court’s ruling, two employees engaged in acts protected by the NLRA at various times in early 2022. This included meetings with representatives of the defendant at which they spoke on behalf of other employees regarding “employee grievances, such as mistreatment from supervisors and threats of being fired.” The two employees reportedly met with union organizers and representatives, followed by discussions with other employees about possibly joining the union. Within a few days, they heard from co-workers that the defendant “was looking for an excuse to fire [them].”
Continue reading

People who believe that their employers have engaged in illegal or unethical behavior should be able to come forward without fear of losing their jobs or facing other forms of retaliation. New Jersey employment law offers broad protections for whistleblowers who report alleged wrongdoing by their employers and engage in other protected activities. At the federal level, numerous statutes include whistleblower protections in specific industries or for specific types of claims. The Sarbanes-Oxley Act of 2002 (SOX), for example, protects employees of publicly-traded corporations who report alleged fraud or violations of securities laws. The U.S. Supreme Court recently agreed to hear a case involving a dispute over who has the burden of proving “retaliatory intent” in SOX whistleblower cases.

New Jersey’s Conscientious Employee Protection Act (CEPA) prohibits employers from “tak[ing] any retaliatory action” against an employee for numerous protected activities. These may include the following:
– Reporting or threatening to report activities that the employee reasonably believes are illegal, unethical, or fraudulent;
– Cooperating with investigations or hearings regarding suspected illegal acts by the employer;
– Testifying in connection with such investigations;
– Objecting to activities or policies that the employee believes are unlawful, fraudulent, or against public policy; and
Reporting an alleged violation of CEPA.

While CEPA applies to all employers in New Jersey, the whistleblower protection provisions in SOX only apply to employers that are also publicly-traded corporations governed by the Securities Exchange Act of 1934 and Securities and Exchange Commission (SEC) regulations. The statute’s list of protected activities is similar to CEPA’s list, except that it only applies to reports and investigations related to certain types of fraud, including wire fraud, bank fraud, and securities fraud, as well as violations of SEC regulations and other securities laws.
Continue reading

Our legal system encourages people who have information about wrongdoing by their employers to come forward and report what they know. This may involve violations of employment statutes, fraud or other criminal acts, or other forms of misconduct. Some statutes provide rewards for employees, known as “whistleblowers,” who provide information that leads to successful civil or criminal enforcement actions. Both federal and New Jersey employment laws protect whistleblowers from retaliation by their employers. The Anti-Money Laundering Act (AMLA), which the U.S. Congress enacted in 2020, includes whistleblower protections. At the end of 2022, Congress enacted the Anti-Money Laundering Whistleblower Improvement Act (AMLWIA). This law protects a wider range of individuals who report alleged unlawful activity. It also increases financial incentives for people to come forward.

In New Jersey, the Conscientious Employee Protection Act (CEPA) bars retaliation by employers against employees who engage in various whistleblowing activities. This might include:
– Reporting, or threatening to report, an activity that the employee reasonably believes is unlawful to a supervisor or regulatory agency;
– Participating in a public investigation or hearing that relates to alleged unlawful activity by the employer; or
– Objecting to or refusing to participate in an activity that the employee believes is illegal, fraudulent, or against public policy.

An employee in New Jersey who believes that their employer has retaliated against them in violation of CEPA has one year to file a lawsuit. Damages may include lost wages and benefits, reinstatement with full benefits and seniority, injunctive relief, and attorney’s fees.
Continue reading

Federal and state laws limit where someone may file a lawsuit. The court must have the legal authority to hear the case and issue rulings affecting the defendant, known as jurisdiction. The location of the court, known as the venue, must have some connection to the events of the case or either of the parties. In many lawsuits, determining jurisdiction and venue is easy, such as when both parties are located in the same vicinity. New Jersey employment laws apply to employees, employers, and events in New Jersey. It can be more complicated when the events or the parties’ locations cross county or state lines. A recent decision by the Third Circuit Court of Appeals, for example, addressed an employment discrimination and retaliation lawsuit that involved events in both New Jersey and Connecticut.

The New Jersey Law Against Discrimination (NJLAD) bars New Jersey employers from discriminating against employees and job seekers on the basis of a wide range of factors. These include race, religion, sex, disability, and sexual orientation. The statute also prohibits retaliation by employers against employees who report unlawful acts, assist in investigations, or engage in other protected activities. At the federal level, Title VII of the Civil Rights Act of 1964 has similar provisions, although its protections against workplace discrimination are not as broad.

Both of these statutes provide guidance on where employees may file a lawsuit. Title VII states that an individual may file a lawsuit in U.S. district court in the district where:
– The alleged violation occurred;
– Relevant employment records are located;
– The individual would have worked had the unlawful act not occurred; or
– The employer’s main office is located.
Continue reading

Contact Information