While there are no published opinions confirming that filing a lawsuit constitutes protected activity under CEPA or N.J. public policy. As stated best in Hester v.Parker, an unpublished opinion, the decision of whether filing a complaint in court is considered protected activity has received "scant" attention. N.J. Superior Ct, App. Div., No. A-1681-09T1. In Parker, the Superior Court Appellate Division agreed with Sandom in concluding that a lawsuit may violate CEPA if two conditions are met: (1) the employer's conduct violates a mandatory legal standard, such as discrimination based on race, gender, religion, or sexual preference; and (2) the employee complained of the illegal activity in the workplace and the employer failed to adequately respond. Parker, N.J. Superior Ct, App. Div., No. A-1681-09T1.
Turning on Federal Law, the New Jersey Federal Courts have indicated that filing or participating in a lawsuit adverse to the employer does constitute whistleblowing under CEPA. See, e.g., Ford v. Owens & Minor, Civil No. 00-cv-5328 (D.N.J. June 24, 2002) (filing an LAD complaint); McKnight v. City of Atlantic City, Civil No. 02-1600 (D.N.J. January 27, 2003) (testimony in a civil trial); Surasrisuwanphap v. Pad Thai, Inc., Civil Action No.: 10-1762 (D.N.J. June 10, 2010) (testifying at a deposition in a civil case).In Kolb v. Burns, 320 N.J. Super. 467 (App. Div. 1999), however, the Court considered whether giving testimony under subpoena in a hearing conducted in the Office of Administrative Law in an action adverse to the employer constituted whistleblowing activity protected by N.J.S.A. 34:19-3(b). It answered that question in the affirmative. Kolb v. Burns, supra, 320 N.J. Super. at 467; see also, Cavuoti v. New Jersey Transit Corp., 161 N.J. 107 (1999) (filing of EEOC claim triggered whistleblower protection). Given that CEPA protection is granted to employees who participate in OAL hearings or file EEOC claims, it would be patently absurd to deny the same protection to employees who bring lawsuits against their employers. With respect to filing a complaint with an administrative agency, the Federal District Court for the District of N.J. has stated that filing a complaint with the EEOC is not protected activity. Smith v. Travelers Mortgage Services, 699 F. Supp. 1080, 1081 (D.N.J. 1988).
If you feel that you have been retaliated again due to your filing of a lawsuit or an EEOC Complaint or if you have participating in an investigation adverse to your employer, and been terminated, suspended or demoted because of it, call Mark Law Firm, LLC - employment attorneys specializing in Whistleblower claims. Contact us at 908-626-1001 or 973-440-2311, or click the "Contact Us" page and tell us your story. Mark Law Firm handles Whistleblower claims in Woodbridge, Edison and Plainfield, New Jersey.