CEPA Category Archives — Page 2 of 2 — New Jersey Employment Lawyers Blog Published by New Jersey Employment Attorneys

New Jersey Transgender Equality Task Force Issues Recommendations to Address LGBTQ Discrimination

November 21, 2019 | Smith Eibeler LLC

The New Jersey Transgender Equality Task Force issued its report and recommendations on November 20, 2019 to address discrimination against transgender individuals of New Jersey. The New Jersey Transgender Equality Task Force, was established by Governor Murphy and its Senate and Assembly sponsors in July, 2018, convened in March, 2019 and has worked for the past six month studying a wide ranging issues of discrimination facing transgender persons, including health care, long term care, education, higher education, housing, employment and criminal justice. New Jersey’s creation of the Transgender Equality Task Force is the first in the nation.

The task force was chaired by Aaron Potenza who is the Policy and Program Manager for the New Jersey Coalition Against Sexual Assault. Mr. Potenza was joined by representatives from nine state agencies along with other experts, lawyers and health care professionals. The task force’s directive was to assess the legal and societal barriers to equality for transgender individuals in the State and to make recommendations to ensure equality and improve the lives of transgender individuals. The task force’s report, entitled “Addressing Discrimination Against Transgender New Jerseyans”, includes various recommendations to address LGBTQ discrimination, which include the following:

the Governor’s Office announcing a campaign to increase sexual orientation and gender identity data collection throughout New Jersey state agencies;

New Jersey Supreme Court Guards Whistleblower Claims under CEPA

July 25, 2019 | Smith Eibeler LLC

The New Jersey Supreme Court recently provided further clarification on what an employee must ‘know’ to be able to sustain a claim against their employer under the New Jersey whistleblower protection law, the Conscientious Employee Protection Act (CEPA). In July 2019, the court issued its opinion in the case Chiofalo v. State, finding that an employee’s whistleblower retaliation claim should not necessarily be dismissed because the employee did not identify the specific law that the employee believed their employer to have been violating. The court held that, where an employee held a reasonable belief that complained of conduct was criminal or fraudulent, that is enough to come within the broad remedial scope of the CEPA whistleblower protection statute.

The plaintiff in that case, Frank Chiofalo, was a Sergeant with the State Police when he allegedly refused to participate in activity that he alleged be believed to be criminal or fraudulent. Specifically, Sgt. Chiofalo alleged that he was directed by a supervisor to destroy a record from a fellow officer’s personnel file. The record in question was a “letter of appreciation” that memorialized a police escort that was provided to a civilian. This record was potentially damaging, as the escort in question was not officially sanctioned, violated policy, and led to an internal review by the State Police. Sgt. Chiofalo alleged that because he refused to destroy this record to protect the other officer, he was subjected to discipline when he was demoted and denied a promotion. Sgt. Chiofalo then filed suit, claiming that his rights were violated under the CEPA whistleblower protection law.

The Appellate Division found that Sgt. Chiofalo’s CEPA claim had to be dismissed because he had failed to specifically identify a statute, regulation, or public policy that the conduct he complained of was or would have been in violation of. The New Jersey Supreme Court disagreed and reversed that aspect of the decision. The Court agreed with the Appellate Division that the plaintiff must have had a reasonable belief that the complained of conduct violated the law, that reasonable belief did not have to be specific or particularized. The Court reiterated language from prior precedent “that [courts] do not expect whistleblower employees to be lawyers on the spot.” Rather, they can rely on their perception and later, with the assistance of counsel, identify the specific statute, regulation, or public policy that the conduct was in violation of.

Who is a Whistleblower under New Jersey law?

March 15, 2019 | Smith Eibeler LLC

New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities. The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large. However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.

New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.

Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer. By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities. The state law applies to private and public employers and employees. It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.

Appellate Division Allows Detective’s Whistleblower Lawsuit to Proceed

May 18, 2018 | Smith Eibeler LLC

The New Jersey Appellate Division has overturned a trial court’s decision dismissing a Somerset County detective’s whistleblower lawsuit that stems from complaints he made regarding improper evidence collection and casework by the forensic unit and his supervisor. The case was previously dismissed by the trial court who found that the Somerset County Prosecutor’s Office’s actions in transferring the detective from the forensic unit to the fugitive squad did not amount to an adverse employment action required under the New Jersey Conscientious Employee Protection Act (“CEPA”) “whistleblower” law.

The Appellate Division disagreed with the trial court and has ordered the case to move forward to the discovery phase. The plaintiff in the case, Jeffrey Scozzafava, began working in the Somerset County Prosecutor’s Office forensic unit in 2007. Prior to his employment with the Somerset County Prosecutor’s office, Mr. Scozzafava was employed as a forensic detective with the New Jersey State Police Crime Scene Investigation unit. In the lawsuit, Mr. Scozzafava alleges that he made several complaints regarding poor evidence collection and inadequate casework completed by the Unit (which included his supervisor) and that he was retaliated against by his employer in response to those complaints.

Specifically, Mr. Scozzafava contends that his supervisor’s decision to move him out of the forensic unit to the fugitive squad amounts to an adverse employment action. Mr. Scozzafava alleges that his supervisor told Mr. Scozzafava that “Everybody does time in the penalty box” when they discussed the job transfer. In the new role, Mr. Scozzafava was no longer able to earn overtime compensation and his office car was downgraded. Mr. Scozzafava also claims that as a result of the transfer, he was no longer able to utilize the skills and knowledge he had gained in his experience and study of forensic detective work. This was particularly demeaning to him because he had developed extensive expertise in the field in addition to having earned a proven reputation as an expert.