Retaliation Claims in New Jersey
& Associates, PC. He practices in the fields of professional liability,
employment litigation, insurance coverage, products liability and
complex commercial litigation.
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Discrimination
has a specific subsection addressing
employer retaliation against employees
for engaging in "protected" activity.
activity that are "protected:" (1) oppos-
ing practices or acts that are unlawful
under the LAD, i.e., complaining about,
or protesting against, discrimination in
the workplace and (2) filing a complaint
or testifying or assisting in any proceeding
under this act. In addition, this section of
the LAD provides that it is unlawful for an
employer "to coerce, intimidate, threaten
or interfere with any person in the exercise
or enjoyment of, or on account of that per-
son having aided or encouraged any other
person in the exercise or enjoyment of, any
right granted or protected by this act."
also apply to retaliation that happens after
an employee is fired.
order to establish a prima facie case of re-
required to show: (1) he/she was engaged
in a protected activity known to the em-
ployer; (2) he/she was thereafter subjected
to an adverse employment decision by the
employer; and (3) there was a causal link
between his protected activity and the
subsequent adverse employment action.
reason more likely than not motivated the
defendant's action or that the defendant's
stated reason for its action is not the
real reason for its action. To prevail, the
plaintiff is not required to prove that his/
her protected activity was the only reason
or motivation for the defendant's actions.
not limited to, being discharged, demoted,
not hired, not promoted or disciplined. In
addition, many separate but relatively mi-
nor instances of behavior directed against
the plaintiff may combine to make up a
pattern of retaliatory behavior.
underlying complaint of discrimination was
brought "reasonably and in good faith."
Protection Act
Protection Act (CEPA), commonly known
as New Jersey's "whistleblower statute,"
an employee may not be discharged or
discriminated against in retaliation for the
following activities:
an activity, policy or practice of the
employer (or another employer) that the
employee reasonably believes is illegal,
fraudulent or criminal. The disclosure
may be made to either a supervisor or a
public body.
a public body conducting an inves-
tigation, hearing or inquiry into an
employer's violation of law.
in an activity, policy or practice that the
employee reasonably believes is illegal,
fraudulent, criminal or incompatible
with a clear mandate of public policy.
pursuant to CEPA must demonstrate that:
(1) he or she reasonably believed that his
or her employer's conduct was violating
either a law, rule or regulation promulgated
pursuant to law, or a clear mandate of
public policy; (2) he or she performed a
"whistle-blowing" activity; (3) an adverse