Mark Law Firm Blog

Whistleblowers, don't forget to disclose your whistleblower activity in writing

Posted by Jamison Mark on May 8, 2014 3:11:00 PM
New Jersey Attorneys

It is well recognized, and agreed that whistle-blowing activity includes an employee's disclosure "to a supervisor or to a public body" of, or his objection to or refusal to participate in an Employers' activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. Retaliatory action means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.

Retaliatory action pursuant to the New Jersey Conscientious Employee Protection Act means that the employer takes "adverse employment action against an employee in the terms and conditions of employment". Adverse action, typically, means any reduction in an employee's compensation, a withdrawal of benefits formerly provided, change in the workday, increase or decrease of salaries, hours, and fringe benefits, physical arrangements and facilities, promotional procedures, making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations-causing the employee to suffer a mental breakdown and rendering him unfit for continued employment. Moreover, retaliation "need not be a single discrete action, but may include many separate but relatively minor instances, that when combined together will make up a pattern of retaliatory conduct."

The court will consider many factors when determining if an act is "adverse," such as the employee's loss of status, a clouding of job responsibilities, diminution in authority, disadvantageous transfers or assignments, and toleration of harassment by other employees, as well as assignment to different or less desirable tasks.

Be aware, however, that if an employer rescinds the adverse action, making you whole, the adverse employment action is lost. Also, not everything the employer does which makes you unhappy is "adverse," including a conduct resulting in a "bruised ego" or an "injured pride," or "mildly unpleasant conduct."

For an employer's conduct to be considered adverse, that conduct must have had a significantly negative effect on the employee's terms and conditions of employment. Any action resulting in the "the discharge, suspension or demotion of an employee, or conduct that affect the terms and conditions of employment but fall short of discharge, suspension, or demotion, to constitute an adverse employment action.

In order to ensure that your claim as a Whistleblower is not dismissed, it is very important to make sure your complaint of employer illegal activity is in writing, and to either a supervisor or to an outside agency.

The New Jersey Conscientious Employee Protection Act protects employees from being victims of unlawful retaliation, who suffer from adverse employment actions by their employer. We realize that it can be difficult to determine what situations fall under those protections. If you feel that you have been subjected to any of these events, please contact Mark Law Firm, LLC at (973) 440-2311, (908) 626-1001 or (201) 787-9406, or you can tell us your story by clicking the "contact us" page. We represent clients throughout Essex, Hudson and Somerset Counties, New Jersey including Newark, Jersey City, and Basking Ridge

Topics: Whistleblower Protection