A recent decision issued by the Chief Judge of the United States District Court for the District of New Jersey is a reminder that not every employee who “blows the whistle” is a “whistleblower” protected under the New Jersey Conscientious Employee Protection Act (CEPA), and that the New Jersey Supreme Court’s gatekeeping instructions to trial courts in Dzwonar v. McDevitt (2003) are alive and well.
New Jersey’s whistleblower statute encourages employees to report illegal workplace activities and protects them from retaliation for engaging in such conduct. CEPA is a broad, remedial statute, providing an array of significant remedies to an aggrieved party. Importantly, however, not every employee who complains, objects to, or files a grievance about something that occurred in or is related to the workplace is a protected “whistleblower” under CEPA.
In Dzwonar v. McDevitt, 177 N.J. 451 (2003), the New Jersey Supreme Court provided the analytical framework for trial courts to use to separate the proverbial wheat from the chaff in most CEPA cases. To establish a prima facie CEPA claim, the employee must establish (1) that he or she objected to or refused to participate in an activity, policy or practice that the employee believed violated either a law, rule, or regulation, or was fraudulent or criminal or violated a public policy; (2) a “whistle-blowing” activity as described in N.J.S.A. § 34:19-3c; (3) an adverse...
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