Mark & Galusha, Whistleblower Attorneys in Newark New Jersey

With the start of 2011, the NJ Appellate Division has made a ruling in Aviles v. Big M, Inc., 2011 N.J. Super. Unpub. LEXIS 564 (App. Div. Mar. 8, 2011) that New Jersey's Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. ("CEPA") does not provide protection to employees who “blow the whistle” on consumers who violated the law. While CEPA provides broad protection to a whistle-blowing employee who complains about the unlawful conduct of an employer or co-worker. the New Jersey Appellate Division addressed the issue and has ruled that CEPA does not reach to protect employees from retaliation for complaining about the unlawful conduct of a customer.

Mandees department store hired Aviles, elevating her to store manager. In December 2007, a dressing room attendant informed Aviles that a customer was acting suspicious in a changing room. Aviles questioned her, but did not discover any concealed merchandise. As store manager, Aviles was permitted to search consumers who she observed acting suspicious. When questioned, Aviles admitted confronting the customer and asking to search her handbag, but this was contrary to Mandee's loss prevention policy. Based upon the investigation, Mandee terminated Aviles' employment for violating Company policy by confronting the customer in the absence of the requisite circumstances.

The Court held that Aviles could not base a whistleblowing claim under CEPA upon her performance of her required job responsibilities. In other words, because she was supposed to stop shoplifting as part of her ordinary job responsibilities as store manager, she could not base a CEPA claim on her effort to stop shoplifting. The Court stated, a "plaintiff's job duties cannot be considered whistle-blowing conduct." The Appellate Division affirmed the trial court's dismissal of the CEPA claim.

How this Case Effects You?

We believe that the court has taken a too-narrow view of these facts. For example, what if the Aviles was a cashier and not a store manager. Aviles duties then would not include “stopping shoplifting” and therefore a report of illegal conduct may be covered under the CEPA statute. Also, what about the financial benefit an employer may receive from a customer. Specifically, what if that customer was a long time customer who whose business amounted to a significant portion of the Employer’s business. Clearly, an employer may take a harsh stance to rid itself of the whistleblowing employee to save the customer’s business. This is an issue which we foresee will be challenged in the courts at a latter date. The New Jersey Appellate Division's decision in Aviles, appears to hold that CEPA does not offer protection to employees who report fraudulent conduct or securities law violations to third parties.. Notwithstanding Aviles, prudent employers should be cautious when taking any adverse action against a complaining employee - even if the complaints pertain only to a customer's misconduct - because New Jersey courts typically interpret and apply CEPA broadly and may revisit this issue in a future case in which the customer's culpability and the employee's whistle-blowing are clearer.

Mark & Galusha, Lawyers handling wrongful termination and CEPA claims in Millburn and Livingston, Essex County, New Jersey.

If you believe that you are a whistleblower, and would like more information about these legal issues and to schedule your free consultation, contact Mark & Galusha at 908-626-1001 or 973-440-2311, or tell us your story by clicking the "contact us" page. All communication with our firm is privileged communication and will not be shared with anyone.