Retaliation and Whistleblowers

Bergen County Employment Lawyers Representing New Jersey Workers in Retaliation and Whistleblower Claims

A Bergen County employment lawyer can help you decide whether what your employer did to you is retaliation under New Jersey law. If your employer fired you, demoted you, cut your pay, or made your work life miserable after you reported something illegal, complained about discrimination, took a protected leave, or filed a workers’ compensation claim, then you may have a retaliation claim under New Jersey law.

Retaliation is one of the most common — and one of the most legally protected — forms of workplace misconduct in this state. New Jersey provides some of the strongest worker protections in the country. The Bergen County employment law attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C., represent employees throughout New Jersey who have been punished for asserting their rights. This page explains what retaliation is, the laws that prohibit it, and what you can do if you believe it has happened to you.

What Is Retaliation Under New Jersey Law?

Retaliation occurs when an employer takes an adverse action against an employee because the employee engaged in legally protected activity. Three pieces have to fit together to make out a retaliation claim: a legally-protected activity, an adverse employment action, and a causal connection between the two.

A protected activity is any conduct the law specifically shields from punishment. The exact definition depends on which statute applies, but it generally includes reporting conduct you reasonably believe was illegal or fraudulent, opposing discrimination, requesting a reasonable accommodation, taking a protected medical or family leave, filing a workers’ compensation claim, or participating in an investigation or legal proceeding involving the employer.

An adverse action is anything significant enough to dissuade a reasonable worker from engaging in protected activity. Termination is the most obvious example, but adverse actions also include demotions, pay cuts, schedule changes designed to punish, suspensions, denial of promotion, sudden negative performance reviews, exclusion from meetings or projects, and the creation of a hostile work environment. The action does not have to be a formal disciplinary step. Courts in New Jersey have recognized that subtle but harmful conduct can qualify.

The causal connection is what ties the two together. Employees usually prove this with timing, with shifting or inconsistent explanations from the employer, with comparison to how other employees were treated, or with direct statements made by supervisors. The closer in time the adverse action follows the protected activity, the stronger the inference of retaliation tends to be.

The New Jersey Statutes That Prohibit Retaliation

New Jersey law prohibits retaliation through several different statutes. Which one applies depends on the kind of protected activity involved.

The Conscientious Employee Protection Act (CEPA), codified at N.J.S.A. 34:19-1 through 34:19-14, is widely regarded as one of the broadest whistleblower laws in the United States. CEPA protects employees who disclose, object to, or refuse to participate in conduct that they reasonably believe violates a law, rule, or regulation, or that is fraudulent or criminal, or that is incompatible with a clear mandate of public policy concerning public health, safety, welfare, or the environment. In addition, it also protects licensed health care providers who report improper quality of patient care.

The New Jersey Supreme Court explained the breadth of this protection in Dzwonar v. McDevitt, where the court held that an employee bringing a CEPA claim does not need to prove the employer actually broke the law. Under Dzwonar, the employee must show a reasonable belief that the conduct violated a law or clear public-policy mandate, and the employee or the trial court must be able to identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct. That standard is generous to employees, but it is not unlimited. For example, vague concerns about workplace fairness or violations of an internal company policy will not qualify unless a specific legal or public-policy mandate closely relates to the conduct.

The New Jersey Law Against Discrimination (LAD), codified at N.J.S.A. 10:5-1 through 10:5-50, contains its own anti-retaliation provision at N.J.S.A. 10:5-12(d). That provision makes it unlawful for an employer to take reprisals against any person who has opposed any practice forbidden by the LAD, such as reporting unlawful discrimination, harassment or retaliation. It also prohibits retaliation against anyone who has filed a complaint, testified, or assisted in any LAD proceeding. The New Jersey Division on Civil Rights, which enforces the LAD, recognizes retaliation as a distinct violation of the law. In other words, if you complain about discrimination or harassment based on race, sex, age, disability, religion, sexual orientation, gender identity, national origin, pregnancy, or any other LAD-protected characteristic, then the LAD protects you from being punished for that complaint, even if the underlying discrimination claim ultimately does not succeed. The New Jersey Supreme Court reinforced how seriously courts take this protection in Battaglia v. UPS, recognizing that LAD retaliation claims can stand on their own and survive even when the employee’s original complaint of discrimination is not proven. We discuss this protection in more detail on our retaliation for opposing discrimination page.

The New Jersey Family Leave Act (NJFLA), codified at N.J.S.A. 34:11B-1 through 34:11B-16, prohibits retaliation against employees who take or request leave to care for a family member with a serious health condition or to bond with a new child. Likewise, the federal Family and Medical Leave Act (FMLA), codified at 29 U.S.C. § 2601 and following, provides similar protection for employees who take leave for their own serious health condition or to care for a covered family member. Punishing an employee for using a protected leave, including by counting the leave against the employee in performance reviews or by eliminating the employee’s position upon return, can give rise to a retaliation claim under one or both statutes.

New Jersey’s Wage and Hour Law, codified at N.J.S.A. 34:11-56a and following, and its Wage Payment Law, at N.J.S.A. 34:11-4.1 and following, also prohibit retaliation against employees who complain about unpaid wages, unpaid overtime, minimum wage violations, or other wage violations. These protections were significantly strengthened by the 2019 Wage Theft Act amendments. The federal Fair Labor Standards Act, at 29 U.S.C. § 215(a)(3), provides parallel protection against retaliation.

Workers’ compensation retaliation is prohibited by N.J.S.A. 34:15-39.1, which makes it unlawful for an employer to discharge or discriminate against an employee because the employee filed or attempted to file a workers’ compensation claim. We address this separately on our worker’s compensation retaliation page.

Finally, the federal False Claims Act, at 31 U.S.C. § 3730(h), prohibits retaliation against employees who report fraud against the government. Our False Claims Act page covers those claims in greater depth.

What Retaliation Often Looks Like at Work

Retaliation rarely announces itself. In our experience representing employees throughout New Jersey, patterns tend to repeat themselves:

A long-tenured employee with a clean record reports something to Human Resources such as a safety violation, a wage issue, or a manager’s discriminatory comment, and within weeks suddenly finds themselves on a performance improvement plan (PIP) with vague, unmeetable goals. A worker requests a medical leave under the FMLA or the NJFLA, and returns to find their responsibilities reassigned and their position eliminated as part of a “restructuring.” An employee files a workers’ compensation claim after a workplace injury and suddenly is disciplined for minor infractions that nobody had ever raised before.

Other warning signs include a previously supportive supervisor turning cold, exclusion from meetings the employee used to attend, removal from email distribution lists, or micromanagement that did not occur before, write-ups for behavior that goes unaddressed in coworkers, or a sudden change in tone in performance evaluations that contradicts years of positive reviews. Employers sometimes prepare a paper trail to justify a termination they already have decided on, which is why timing and shifts in treatment can matter so much.

A performance improvement plan issued shortly after protected activity is one of the most common retaliation patterns we see, and often is a precursor to termination.

What You Have to Show to Win a Retaliation Claim in New Jersey

To win a New Jersey retaliation claim, a Bergen County employment lawyer will look for four things: (1) you engaged in legally protected activity, (2) your employer knew about it, (3) you suffered an adverse action, and (4) there is evidence suggesting that the protected activity was a cause of the adverse action. The legal standard varies somewhat by statute, but this four-element pattern is consistent.

Under CEPA, the New Jersey Supreme Court’s decision in Dzwonar v. McDevitt makes clear that you do not have to prove the underlying conduct you complained about was actually illegal. You merely have to show that your belief was objectively reasonable, and to identify a statute, regulation, rule, or public policy that closely relates to the conduct you complained about. Under the LAD, the standard is similar. You do not have to win your underlying discrimination claim to win your retaliation claim, as long as your opposition to the practice was reasonable and made in good faith.

Employers typically defend these cases by arguing that the adverse action would have happened anyway for legitimate reasons such as poor performance, a genuine restructuring, attendance problems, or a violation of company policy. The question then becomes whether those stated reasons are the real reasons or are pretextual. Pretext often is shown by inconsistencies in the employer’s explanation, departures from the employer’s normal practices, the timing of the adverse action, or evidence that similarly situated employees who did not engage in protected activity were treated differently.

Damages in successful retaliation cases can include past lost wages and benefits, either front pay or reinstatement, emotional distress damages, punitive damages in appropriate cases, and attorneys’ fees. CEPA, the LAD, and many other employment law statutes shift attorneys’ fees to the employer when the employee prevails, which can make it economically possible to pursue a strong claim that otherwise might not justify the cost.

What You Can Do Now

If you suspect you are being retaliated against, the steps you take in the early weeks can significantly affect the strength of any future claim.

Document what is happening, in writing, as it happens. Keep at home a contemporaneous log of dates, conversations, witnesses, and changes in how you are being treated. Save relevant emails, text messages, performance reviews, written communications with Human Resources, and any documentation of the protected activity itself. If you reported something internally, keep a copy of the report and any response. Send important communications to a personal email address where appropriate so they are not lost if you are terminated and locked out of company systems. But do not do anything that violates your employer’s policies that could get you in trouble or cost you your job.

Be aware that different retaliation claims have different filing deadlines. CEPA has a one-year statute of limitations. Claims under the LAD allow two years for a court action. Federal claims have their own deadlines, some of which require an administrative filing first. Missing a deadline can end an otherwise strong claim, so do not wait too long to consult with an attorney.

If you are offered a severance agreement after raising concerns or after taking a protected leave, you generally should not sign it without having it reviewed by a lawyer. A severance agreement almost always contains a release of claims. Signing one without legal review can extinguish a retaliation claim that may be worth significantly more than the severance pay that is being offered. Our severance agreements page explains some of the issues to watch for.

Finally, think carefully before continuing to escalate complaints internally without legal guidance. Internal reporting can strengthen a retaliation claim, but it also can cause your employer to have a greater incentive to retaliate against you. In addition, the timing and content of your reports matter. Further, what you put in writing could be used either for you or against you. An employment attorney can help you decide what to report, and when and how to do so.

Frequently Asked Questions

What is the statute of limitations for a CEPA claim in New Jersey?

One year from the date of the last retaliatory act, under N.J.S.A. 34:19-5. In a harassment case, the claim accrues on the day when the pattern of retaliatory harassment stops.

Can I file a retaliation claim if I cannot prove the underlying discrimination?

Yes, under both CEPA and the LAD. Battaglia v. UPS confirms that an LAD retaliation claim can survive even if the underlying discrimination claim does not, as long as the complaint was made in good faith and the opposition to the practice was reasonable.

Does CEPA cover all New Jersey employees?

CEPA covers most employees of public and private employers in New Jersey. New Jersey courts have also extended CEPA’s protection to some workers classified as independent contractors when the relationship has the economic indicia of employment (see D’Annunzio v. Prudential).

What counts as an adverse employment action under New Jersey retaliation laws?

An adverse action is anything significant enough to dissuade a reasonable worker from engaging in protected activity. That includes termination, demotion, pay cuts, suspensions, and denials of promotions. It also can include harassment, which is a series of smaller negative actions, such as sudden negative performance reviews, exclusion from meetings or projects, undesirable schedule changes, assignment to less important work, or isolation from coworkers, that creates a hostile work environment.

Can my employer retaliate against me for filing a workers’ compensation claim?

No. N.J.S.A. 34:15-39.1 makes it unlawful for an employer to discharge or discriminate against an employee because the employee filed or attempted to file a workers’ compensation claim.

How long do I have to file an FMLA retaliation lawsuit?

Generally, two years from the date of the last retaliatory act, but that can be extended to three years for certain willful violations. You should confirm the deadline that applies to your specific claim with an attorney before relying on any general timeframe.

Should I sign a severance agreement if I think I have a retaliation claim?

Generally not without a legal review. A severance agreement almost always contains a release of claims. Signing one without a review can extinguish your retaliation claim that might be worth significantly more than the severance pay you have been offered.

Speak With a Bergen County Employment Lawyer

If you believe your employer has retaliated against you for asserting your rights, the attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can review the facts, explain the laws that may apply, and help you decide on next steps. Our firm represents employees throughout New Jersey from our office in Montvale. We have handled numerous retaliation claims under CEPA, the LAD, the FMLA, the NJFLA, and the workers’ compensation retaliation statute. To schedule a consultation with a Bergen County employment lawyer, call (201) 777-2250 or contact the firm through our secure online contact form.