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Kurkowski Law -- Discrimination

Workplace Retaliation

1. Conscientious Employee Protection Act, NJSA 34:19-1, et seq.:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

2. “PIERCE CLAIMS”

are also known as common law retaliation claims. The name comes from the seminal case of N.J. Supreme Court case Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980), which held that an employee has a cause of action for termination in violation of clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, violations are decided on a case by case basis and not all such sources express a clear mandate of public policy. The employee must identify specific expression of public policy; he may be discharged with or without cause.

3. New Jersey Civil Acts Act,N.J.S.A.10:6-1, et seq.

The New Jersey state cause of action gives the Attorney General the right to bring constitutional or retaliation action against any person whether ornot acting under color of law. These claims also create a State §1983 for persons injured by constitutional claims taken under color of law. These actions providefor Plaintiff’s attorney’s fees upon success.

10:6-2 Civil actions for rights violations

a. If a person, whether or not acting under color of law, subjects or causes to be subjected any other person to the deprivation of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall order the distribution of any award of damages to the injured party and shall award reasonable attorney's fees and costs to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

b. If a person, whether or not acting under color of law, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall order the distribution of any award of damages to the injured party and shall award reasonable attorney's fees and costs to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

c. Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

d. An action brought pursuant to this act may be filed in Superior Court. Upon application of any party, a jury trial shall be directed.

e. Any person who deprives, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State are liable for a civil penalty for each violation. The court or jury, as the case may be, shall determine the appropriate amount of the penalty. Any money collected by the court in payment of a civil penalty shall be conveyed to the State Treasurer for deposit into the State General Fund.

f. In addition to any damages, civil penalty, injunction or other appropriate relief awarded in an action brought pursuant to subsection c. of this section, the court may award the prevailing party reasonable attorney's fees and costs. L.2004, c. 143, § 2, eff. Sept. 10, 2004.

4. 42 U.S.C. §1983– Federal Civil Rights Retaliation Claims

These retaliation claims are for exercising constitutional rights against persons acting under color of law. A major difference between §1983 and CEPA is that CEPA only protects employees while §1983 protects “all persons” including independent contractors.

5. Workers’ Compensation Retaliation

The Workers’ Compensation statute, NJSA 34:15-39.1 only prohibits the termination of an employee in retaliation for filing a workers compensation claim or for testifying at a workers’ compensation hearing.

EMPLOYMENT LAW       

QUICK LINKS

The Federal Family and Medical Leave Act (FMLA)  requires employers of 50 or more employees to give up to 12 weeks of unpaid, job-protected leave to eligible employees.. more

The New Jersey Law Against Discrimination (NJLAD) makes it unlawful to subject people to differential treatment based upon the characteristics that make up a particular individual -- race, nationality, age, sex, marital status, perceived sexual orientation.. more

The New Jersey Conscientious Employee Protection Act is one of the most far-reaching whistleblower statutes in the nation. Aimed to protect employee “whistleblowers,” the statute makes it unlawful for an employer to take adverse employment action(s) against an employee.. more


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