New Jersey Supreme Court: Whistleblowers must speak up from the start

In employment law, whether you're a government employee or a private sector worker, there is a very specific process in place for how to resolve disputes such as claims of whistleblower retaliation. Typically, you can only file a lawsuit after you have made a good faith effort to resolve the dispute though your employer's internal process and have been denied.

New Jersey public servants will be affected by a recent ruling by the state Supreme Court has provided an important clarification to that general rule: If you didn't bring up your whistleblower protection claim from the start, you may have lost your chance.

For most New Jersey public employees, the agency that handles employee discipline, whistleblower protection claims and other employment issues is the Civil Service Commission. According to the court's ruling, if you believe a negative job action has been taken against you in retaliation for whistleblowing, you have to bring that issue up at your first hearing or you can't file a whistleblower lawsuit later.

A New Jersey firefighter made this mistake. He was well-known as a vocal critic of certain workplace policies and had filed as many as 250 reports criticizing his superiors. He also aided two other department employees in making allegations of sexual harassment against their department chief, who was later cleared.

The department claimed that he had fabricated the allegations, and he was both demoted and suspended. He appealed, but the agency ruled those actions to have been justified.

He was later terminated, purportedly because the department believed he had misused sick time. He appealed that decision administratively and before the civil service commission (both of which found the firing justified), but he did not argue at those hearings that he had actually been fired in retaliation for whistleblowing.

He later filed a whistleblower retaliation lawsuit under the New Jersey Conscientious Employee Protection Act, which ultimately led to this ruling. His case was turned away because he had not raised the issue in the first place.

This case is a cautionary tale for any public (or private, for that matter) employee who may not think they need a lawyer to handle a disciplinary hearing. If there is the potential for a whistleblower claim, before you take any steps to deal with it before the Civil Service Commission, you should seriously consider consulting an attorney.

Source: The Record, "Ruling limits legal actions of public employees," Linh Tat and Kibret Markos, Sep. 13, 2012