Standing up to Workplace Retaliation: What New Jersey Law Says

By Tom McKinney
NJ Employment Attorney

Retaliation occurs when an employer punishes an employee for asserting his or her workplace rights. This could range from talking to HR about how you are being treated, to filing a formal complaint of harassment or discrimination against your supervisor. 

Retaliation includes any adverse employment action, including: getting fired, demoted, reduced salary, transferred, and an unwarranted poor performance review. The typical scenario workplace retaliation scenario is when an employee files a complaint to HR about some form of misconduct, such as sexual harassment or race discrimination, against another co-worker or supervisor. After HR receives the complaint, the employee may begin to notice changes. The employee’s work may become more scrutinized. The employee’s supervisors and co-workers may become more distant and hostile towards the employee. If the employee is fired or demoted, all signs point to workplace retaliation

New Jersey has in place a wide range of laws to protect employees against retaliation. These laws include:

  • Wage & Hour Laws;
  • Wage Payment Laws;
  • Wage Discrimination Laws;
  • Law Against Discrimination; and
  • Family Leave Act

New Jersey Law Against Discrimination

The New Jersey Law Against Discrimination (“LAD”) identifies two categories of employee activity that are “protected” under the Law: (1) opposing practices or acts that are unlawful under the LAD, i.e., complaining about, or protesting against, discrimination in the workplace; and (2) seeking legal advice regarding rights under the LAD, sharing relevant information with legal counsel, sharing information with a governmental agency or filing a complaint or testifying or assisting in any proceeding under this Act.” Employers are prohibited from coercing, intimidating, threatening or interfering with anyone in the exercise or enjoyment of any right granted or protected by this act. Employees can seek or share with another employee or former employee of the employer, a lawyer from who he or she seeks legal advice, or a government agency, the following information: (1) the terms and conditions of his or her employment; (2) the terms and conditions of the employment of another employee or former employee of the employer; (3) the gender, race, ethnicity, military status, or national origin of the employee; or (4) the gender, race, ethnicity, military status, or national origin of another employee or former employee of the employer. Employers cannot require any employee or prospective employee to waive or agree not to make such requests or disclosures as a condition of employment.

To prevail on a claim, Plaintiff must prove that the following elements are more likely than true than not: (1) the plaintiff exercised an LAD protected activity; (2) the plaintiff was subject to retaliation at the time, or after, the protected activity took place; and (3) there was a causal connection between the retaliatory action and LAD protected activity, sufficient to show that plaintiff’s LAD protected activity played a role in the decision and made an actual difference in the defendant’s decision to retaliate. A protected activity under the LAD includes reporting the misconduct to HR or learning the national origin of another employee. As mentioned previously, retaliation can include, but is not limited to, being discharged, demoted, not hired, not promoted or disciplined. Separate but minor instances directed against an employee can combine to make up a pattern of retaliatory behavior. Finally, plaintiff can satisfy element three by using indirect evidence, such as prior conduct and/or comments. A common example of circumstantial evidence involves the defendant or employer becoming antagonistic towards the plaintiff after the defendant or employer finds out about the plaintiff or employee’s protected activity.

New Jersey Conscientious Employee Protection Act

Additionally, the New Jersey Conscientious Employee Protection Act (“CEPA”), or the “Whistleblower Act,” protects employees who report employer practices they believe to be unlawful. If an employee makes a disclosure to a public body, he or she is not protected against retaliation unless the employee brought the misconduct (e.g., activity, policy or practice) to the attention of a supervisor by written notice and gave the employer a reasonable opportunity to correct the misconduct. However, disclosure is not required where the employee reasonably believes that the misconduct is known to one or more supervisors of the employer or where the employee fears physical harm as a result of the disclosure, provided that the situation is emergency in nature. 

About the Author
Tom McKinney is a skilled employment law attorney with New Jersey Employment Lawyers LLC. He has a track record of success in all areas of employment law, including sexual harassment, discrimination, harassment, wrongful discharge, whistleblower claims and hostile work environment claims. Besides litigation, Tom handles severance agreements and severance package reviews/negotiations for over 100 people each year. If you have any questions regarding this blog, contact Tom here.