Whistleblower Statute - Recovering Lost Wages in the Absence of a "Constructive Discharge"
Mark Law Firm, Employment Attorneys - Essex County, New Jersey
The Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, was implemented to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-workers. In a recent New Jersey case, Donelson v. DuPont Chambers Works, the New Jersey Supreme Court ruled that employee who files suit under CEPA is entitled to recover lost wages, including both back and front pay, even if the employee was not actually fired or constructively discharged.
In Donelson, Plaintiff was employed as an operator technician in one of DuPont's chemical manufacturing facilities and was in charge of ensuring the safe operation of equipment and the safe handling of chemicals in the building. He filed several complaints with both DuPont management and the Occupational Safety and Health Administration regarding conditions in the workplace he believed were unsafe. Plaintiff alleged DuPont retaliated against him as a result of his whistle-blowing activities by cutting his overtime, reducing his work hours, changing his shifts, and giving him poor performance evaluations. DuPont also placed him involuntarily on short-term disability with pay. When he returned from disability leave, Plaintiff was assigned to work twelve-hour shifts in isolation. Plaintiff eventually required psychiatric treatment and took a voluntary six-month leave of absence. When Plaintiff's leave of absence ended, he retired with a disability pension from DuPont.
Filing suit under CEPA, Plaintiff was awarded $2 million for wages lost as a result of DuPont's actions. On appeal, the appellate court reversed and entered judgment in favor of DuPont concluding a lost wage claim could not be awarded under CEPA unless Plaintiff is able to show an actual or constructive discharge. However, the Supreme Court rejected the appellate court's decision and reinstated Plaintiff's award. The Supreme Court found that lost wages are recoverable in a CEPA case even in the absence of a constructive discharge if the employee is able to prove he became mentally disabled as a result of the employer's retaliation. It further noted that unlike under the New Jersey Law Against Discrimination, an employee filing suit under CEPA is not required to prove a constructive discharge in order to obtain back and front pay damages.
If you were wrongfully terminated or believe your civil rights as an employee have been violated by your employer, please contact Mark Law Firm, your civil rights & employment law attorneys representing clients in Newark and Montclair, New Jersey. For your consultation with a lawyer from our Firm, contact us at www.markgalushalaw.com or call us at
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