New Jersey law stipulates that no employee may receive adverse employment action as a result of reporting misconduct, fraud or illegal activity in the workplace. While the majority of New Jersey jobs are considered at-will employment, which means any employee can be hired or fired at any time, workplace retaliation laws exist to limit employers’ ability to fire someone as retaliation.
What is Workplace Retaliation?
Workplace Retaliation is when an employee is punished in some way by their employer for taking part in reporting fraudulent, dangerous, unethical, or illegal activity in the workplace. When an employee reports such behaviors to superiors or other public parties, they cannot be demoted, fired, or otherwise punished under New Jersey law.
Retaliation can take many forms. The most obvious form of retaliation is job loss or being fired. Being fired directly after reporting misconduct is a red flag that workplace retaliation may be the cause. Similarly, being demoted to a lesser position, or being given undesirable shifts or work hours is another form of retaliation. Reduction in pay, loss of benefits or any other adverse employment action handed down to an employee who made a report in the workplace could be possible workplace retaliation.
New Jersey’s Conscientious Employee Protection Act, or CEPA, prohibits any form of workplace retaliation against an employee who acted as a whistleblower or refused to take part in questionable workplace behaviors.
Examples of Workplace Retaliation
Workplace retaliation could be in response to any number of employee-protected actions. The common thread that makes them all considered retaliation is that they are punishments from the employer to the employee in response to an employee acting within their protected rights.
Retaliation for whistleblowing is, perhaps, the most common form of workplace retaliation. If an employee has either formally reported misconduct to supervisors, or has testified in court against his or her employer about illegal or unethical behaviors, he or she is considered a whistleblower. Any adverse employment action toward them directly following this report could be whistleblower retaliation.
If an employee refuses to take part in behavior or actions they perceive to be illegal, fraudulent, unethical or unsafe, and their employer then takes adverse employment action against them, that also is considered to be whistleblower retaliation.
Worker’s Compensation Retaliation
New Jersey employers are required to pay for worker’s compensation insurance for their employees. When employees need worker’s compensation after an injury or work-related illness, employers may attempt to fire, discharge, demote or otherwise punish them for using this insurance, which costs the company money. However, under CEPA law, this is considered retaliation and is prohibited.
No employer may demote, discharge, or otherwise discriminate against an employee for making a worker’s compensation claim. If they do, they may be susceptible to a civil suit or tort action requiring them to pay compensation and other damages to the employee.
FMLA and NJFLA Retaliation
Federal and state laws allow employees to take up to 12 weeks of unpaid leave for illness, a new child, or family care needs. When an employee returns from their 12 weeks of leave, they have a legal right to return to their same job or a similar job at the same level and pay rate.
If an employee is dismissed, demoted or receives a reduction in pay due to taking this leave, that is considered retaliation. Employers could be sued for FMLA or NJFLA Retaliation if a direct cause can be linked from their adverse employment action to their leave.
New Jersey’s Law Against Discrimination (LAD) prohibits any employer from taking any form of retribution against an employee who speaks out against discriminatory behavior in the workplace. Whether an employee makes a formal complaint of, verbalized opposition to, or refuses to partake in any discriminatory behaviors, they cannot be punished, coerced or intimidated by their employer.
If an employee has received any sort of reprisal for their part in reporting, stopping or giving testimony about workplace discrimination, he or she may seek legal compensation against their employer for retaliation.
How Do I Prove Retaliation in the Workplace?
Retaliation can be tricky to prove since regular hard evidence is typically unlikely to be found. As a result, these cases are usually decided based on enough circumstantial evidence to suggest retaliation did occur.
|In order to prove retaliation, an employee must show evidence of at least three things:|
|1.||The employee took part in a legally protected program like worker’s compensation or family leave, or that the employee reported, spoke out against, or refused to participate in any illegal or discriminatory activity.|
|2.||The employee received an adverse employment action from their employer. This could be in the form of firing, demotion, reduction in pay, fewer hours, or other negative work-related experience.|
|3.||A direct causal relationship that shows that the negative employment action was handed down as a direct result of their involvement in a protected activity or report.|
|4.||Additionally, for whistleblower and LAD retaliation, the employee must also show that they, in good faith, believed that the behaviors or discriminatory actions they reported were morally wrong, dangerous, fraudulent or illegal at the time of their report.|
Contact an Employment Attorney if You Have Suffered Workplace Retaliation
If you believe that you have been punished in the workplace after either reporting illegal or discriminatory behaviors, filing for worker’s compensation, or taking family leave time, you may have a workplace retaliation claim. Contact our employment lawyers at Castronovo & McKinney for a free consultation of your case. We can work with you to regain your position and any lost income due to your unfair retaliation experience.