Employee Does Not Have to Prove Constructive Discharge to Recover Lost Wages Under New Jersey Whistleblower Law

The New Jersey Supreme Court has held that a former employee may recover lost wages under the New Jersey Conscientious Employee Protection Act (CEPA) without proving that a constructive discharge has occurred. Donelson v. DuPont Chambers Works, 2011 N.J. LEXIS 638 (June 9, 2011).

In this case, the plaintiff alleged that he experienced retaliation after he reported to his former employer that certain of its practices affected public safety and after he reported certain concerns to the federal Occupational Safety and Health Administration. He eventually took a six-month leave of absence and never returned to work. He filed a complaint under the New Jersey CEPA, seeking compensation for lost earnings and other employment benefits, as well as mental anguish, humiliation, and injury to reputation. While the jury found in the plaintiff’s favor, the New Jersey Appellate Division reversed, finding that a lost wage claim under CEPA requires an actual or constructive discharge. The New Jersey Supreme Court reversed, holding that constructive discharge is only one ground for recovering lost wages, and that other retaliatory actions under the New Jersey CEPA include acts taken against an employee in connection with the terms and conditions of employment. The Court held that, in order to encourage the efforts of dissenting employees to speak out against workplace violations, a broad interpretation of the CEPA is necessary.

Employers must be aware of the important implications of actions taken against employees who allege that they are involved in a protected whistleblowing activity.