Retaliation In a Westfield Municipal Workplace?

Retaliation May Not Require Termination, Demotion, or Discipline

The following was copied from a legal brief, the author is unknown.

New Jersey’s whistleblower statute, Conscientious Employee Protection Act (“CEPA”) has been described as one of the most far-reaching whistleblower statutes in the country.  CEPA makes it unlawful for employers to take adverse employment actions against employees who disclose, object to or refuse to participate in certain actions that an employee reasonably believes is either illegal or in violation of public policy.  Under CEPA, the employee’s belief does not have to be “correct” about his/her complaint; it just has to be an objectively reasonable belief that the actions are unlawful.  Furthermore, unlike other whistleblower statutes, the employee is not required to make a complaint to any governmental or regulatory agency for CEPA to apply.  It is sufficient that the employee complain to their supervisor.

Recently the Appellate Division, the intermediate appellate court in New Jersey, addressed what types of “adverse employment actions” were covered by CEPA in Beasley v. Passaic County http://www.meislik.com/cases/beasley_v_passaic_county/ and in Nardello v. Township of Voorhees  http://caselaw.findlaw.com/nj-superior-court-appellate-division/1187762.html   Prior to these cases, employees had difficulty showing retaliation if they were not disciplined, terminated, or demoted.

After Beasley and Nardello, that is no longer the case.  The plaintiff in Beasley v. Passaic County worked as a supervisor at the Passaic County Juvenile Detention Center.  He claimed that after he testified at a public meeting of the Board of Freeholders regarding deficiencies in the department, including poor training and insufficient staffing, he was subject to retaliation.  This allegedly included being disciplined and investigated when other employees were not (although the disciplines were later overturned); being denied the opportunity to work overtime; being improperly transferred to another shift; and the County improperly opposing his request for workers’ compensation.  The court recognized that all actions do not qualify as retaliation “merely because they resulted in a bruised ego or injured pride on the part of the employee.”  Nonetheless, retaliation need not raise to the level of discharge or demotion to be actionable under CEPA.  Ultimately, the court held that a pattern of conduct by an employer that adversely affects an employee’s terms and conditions of employment can qualify as retaliation under CEPA.  Thus, Beasley’s claims were sufficient under CEPA.

Nardello involved a police officer who claimed he was retaliated against because he made complaints to his superiors and reported, what he believed were, illegal actions to the Prosecutor’s Office.  Nardello was not demoted or fired and did not suffer any reduction in his salary.  However, other action was taken against him, including denying him permission to attend firearms training; removal from the detective bureau; and assigning him demeaning tasks.  The Court held that this was enough under CEPA, saying “while many of the incidents are relatively minor….a jury could conclude that they combine to demonstrate a pattern of retaliatory conduct.”

Go to http://www.businessmanagementdaily.com/articles/5274/1/How-to-comply-with-NJs-sweeping-whistle-blower-protection-law/Page1.html#  for another "CEPA" case involving a "whistleblower."

The Beasley and Nardello cases demonstrate a further expansion of CEPA.  An employee need not be discharged, demoted, or disciplined to have a CEPA case.  It may be enough for them to be subjected to several “minor” incidents, that when viewed together, may rise to the level of retaliatory conduct. 

Summary: The Conscientious Employee Protection Act

The New Jersey Conscientious Employee Protection Act has been called “the most far reaching whistle-blower statute in the nation.” The act makes it illegal for employers to retaliate against employees who: Disclose (or threaten to disclose) the employer’s illegal conduct. Provide information to a public body investigating illegal conduct. Object to (or refuse to participate in) conduct that they reasonably believe to be illegal, fraudulent or threatening to public safety or the environment.

Question: 

1.  If Westfield Patrol Captain David Wayman asks a subordinate to do some work at the Captain's private residence, in return for a benefit at work, is this not Official Misconduct?

2.  If Westfield Patrol Captain David Wayman allegedly "orchestrates" the removal of an employee from one assignment to a less desirable assignment as a result of inquiries made concerning the police department, is this an act of retaliation under CEPA?  

It should be noted that Westfield Police Captain David Wayman is currently under investigation by the Union County Prosecutor's Office.

If any of these officers files a complaint with a governmental or regulatory agency with regards to the alleged unlawful request made by Captain Wayman, he/she should be protected under CEPA.