Wrongfully Terminated Due to Retaliation & Whistleblowing in New Jersey

Employees may not be fired for exercising their workplace rights or reporting illegal workplace activity.

If you were fired from your New Jersey job for complaining about illegal behavior or exercising your legal rights, you may have a wrongful termination claim for whistleblowing or retaliation. New Jersey and federal laws that provide basic workplace protections also prohibit employers from firing employees who take advantage of their rights under these laws. In some circumstances, New Jersey employees are also protected from being fired for whistleblowing: reporting that the company has broken laws unrelated to workers’ rights (such as laws regulating environmental protections or product safety).

What Is Retaliation?

You have been retaliated against if your employer fired or took other adverse action against you because you asserted your workplace rights or filed a complaint about workplace violations (whether internally, with a government agency, or in court). Many employment laws—including those that regulate workplace safety, wages and hours, and discrimination—include a prohibition on retaliation.

Government enforcement agencies (such as the Equal Employment Opportunity Commission or the Occupational Safety and Health Administration) are charged with enforcing these laws. But these agencies typically don’t conduct random workplace audits looking for violations. Instead, they rely on employee complaints that an employer has broken the law. This is why retaliation is prohibited: If employers were free to fire employees who complained, employees would stop reporting violations and these important laws would go unenforced.

When an agency receives an employee complaint, it may ask the employer to respond, investigate the employee’s allegations, impose a fine, or even make an administrative finding that an employer has likely violated the law. However, the agency almost never files a lawsuit to vindicate the employee’s rights. Instead, it’s up to the employee to go to court and enforce the law.

Here are some laws that include a provision against retaliation:

  • Wage and hour laws.  Your employer may not fire you for making a complaint—whether within your company or to the federal or New Jersey Department of Labor and Workforce Development—that your employer has violated the Fair Labor Standards Act or New Jersey’s wage and hour laws. For example, you are protected if you complain about your employer’s failure to pay the minimum wage or failure to pay overtime as required by law.
  • Discrimination and harassment laws.  You may not be fired or otherwise retaliated against for complaining—whether to your employer, to the Equal Employment Opportunity Commission, or to the New Jersey Division on Civil Rights—about discrimination prohibited by federal law or New Jersey’s Law Against Discrimination (LAD). You are also protected if you testify, talk to an investigator, or otherwise participate in an internal or administrative proceeding regarding a discrimination or harassment complaint.
  • Leave laws.  You can’t be fired for exercising your right to take time off work to serve on a jury, vote, use family or medical leave, take leave to deal with issues arising from domestic violence, or use worker’s comp leave (among other things). (For more information, see  New Jersey Family and Medical Leave.)
  • Health and safety laws.  You may not be fired for reporting, whether within your company or to the Occupational Safety and Health Administration, health and safety violations at your workplace.

What Is Whistleblowing?

Whistleblowing occurs when an employee reports illegal conduct at work that is not directly related to workplace rights. For example, if you report that your company is filing false tax returns or lying to government auditors, you are a whistleblower.

An employer may not fire an employee for blowing the whistle on certain types of misconduct. Some federal laws that prohibit certain types of unethical or illegal corporate behavior explicitly protect employee whistleblowers. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes whistleblower protections for employees who report financial irregularities and shareholder fraud.

New Jersey’s Conscientious Employee Protection Act (CEPA) also protects whistleblowers. Employers may not fire an employee for disclosing (or threatening to disclose) to a supervisor or public body conduct that violates a law, rule, or regulation; conduct that the employee believes is fraudulent or criminal; or, if the employee is a professional healthcare provider, conduct that constitutes improper quality of patient care. Employees who provide information to or testify before a public body investigating these matters are also protected. And, employees may not be fired for objecting to, or refusing to participate in, any of these activities or other activities that are inconsistent with a clear public policy mandate protecting the environment or public health and safety.

Some states, including New Jersey, also allow employees to sue for wrongful termination in violation of public policy, if they are fired for reporting or refusing to engage in illegal activity. For example, New Jersey employees have sued for wrongful termination in violation of public policy after being fired for reporting workplace safety violations or reporting financial irregularities. If your employer asks you to do something that violates the law, and you are fired for refusing, you may also have a public policy claim.

If You Were Fired for Whistleblowing or Retaliation

If you were fired from your job in New Jersey for reporting (or refusing to take part in) illegal behavior or exercising your legal rights, you may have a wrongful termination claim for retaliation or whistleblowing. These cases are complicated. You should start by talking to an experienced employment lawyer about whether and how to proceed.

Consult With a Lawyer

As you can see, a number of state and federal laws protect employees who assert their rights or complain about misconduct. An experienced lawyer can help you figure out your options and decide on the best way to assert your rights.

Before you meet with a lawyer, put together a detailed timeline that includes: the events underlying your complaint or your report, when you complained or tried to exercise your rights, whom you spoke to (and when), and what happened as a result. To prove retaliation or whistleblowing, you must show that you were fired because of your complaint or actions. Timing is key. The less time that passes between your complaint or attempt to exercise your rights and your employer’s action against you, the stronger your claim is. You will also have to prove that the person who fired you (or made the decision to end your employment) was aware of your complaint or report.

If you’re still out of work, you may be worried about how you will pay for a lawyer. Depending on your claims, however, a lawyer may be willing to take your case on a contingency fee basis. In a contingency fee arrangement, the lawyer is paid only if you win, by taking a percentage of the money you receive. Also, some retaliation statutes allow the court to award attorneys' fees, which means your employer will have to pay an extra amount for your legal fees if you win.

Filing a Government Charge

For certain retaliation claims, you may have to file a complaint with a government agency before you can go to court. For example, you may not file a lawsuit alleging retaliation for complaining of harassment or discrimination under federal law until you file a charge of discrimination with the Equal Employment Opportunity Commission. If you want to sue for wrongful termination in violation of the Sarbanes-Oxley whistleblower protections, you must first file a complaint with the Occupational Safety and Health Administration.

Not all retaliation claims are subject to this rule, however. And, for some types of retaliation claims, you may—but are not required to—file an administrative charge before going to court. In New Jersey, for example, you may file a state discrimination charge with the Division on Civil Rights, but you also have the option of going straight to court. Your lawyer can help you figure out the requirements for your particular claim in your state, as well as the best strategy for proceeding if you have multiple options.

Damages Available for Retaliation and Whistleblowing Claims

The monetary damages available if you win a retaliation or whistleblowing case depend on the law underlying your claims and how strong those claims are. For most wrongful termination cases, an employee can ask for:

  • back pay (wages and benefits you lost as a result of being wrongfully fired)
  • reinstatement or front pay: you can ask the court to give you back your job or, if that’s not feasible, to award you the wages you will lose going forward until you find a new job
  • any expenses you had to pay out of pocket as a result of being fired, such as the cost of searching for a new job, and
  • attorneys' fees and court costs.

In some cases, you might also be entitled to emotional distress damages, awarded to compensate you for the pain and suffering caused by your termination. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available. (Both are available for violations of New Jersey’s CEPA and for claims of wrongful termination in violation of public policy.)

In some whistleblower cases, you might be eligible for a fee or bounty for protecting the public from wrongdoing. (This might be a set amount per violation, a percentage of the total sanction against the employer, or some other amount determined by the statute or the court.) Your lawyer can explain what types of damages might be available in your case.

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