Employers Beware: The Whistleblower and COVID-19

Although New Jersey still finds itself in Stage 2 of Governor Murphy’s plan to get the state to its “New Normal,” New Jersey businesses are reopening as best they can while dealing with effects of the COVID-19 crisis on their operations, including its impact on their work forces. In this regard, it is no surprise that employers have been, and will continue to be, faced with employees’ complaints about alleged COVID-19 related unsafe working conditions and requests to telework. In addition, the Families First Coronavirus Response Act has imposed on many employers new paid sick leave and family leave obligations that do not expire until the end of 2020. The potential is manifest for a high volume of whistleblower claims from employees who believe they have been retaliated against for making COVID-19 work-related complaints, requests to work from home, or requests for paid sick or family leave. Employers need to take seriously such employee complaints and requests and to understand the legal means by which retaliation claims can be brought against them.

Complaints About Unsafe Working Conditions

The COVID-19 crisis has generated a series of Executive Orders issued by Governor Murphy and various government issued guidelines, both state and federal, intended to protect public health and safety. Much of this effort has a direct bearing on the employer-employee relationship in terms of worker safety. As businesses begin to reopen, complaints by employees about allegedly unsafe working conditions are likely. Employees who believe that they have been retaliated against for making such complaints can be expected to bring claims under the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA).

CEPA, in relevant part, prohibits an employer from taking retaliatory action against an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer … that the employee reasonably believes … is in violation of a law, or a rule or regulation promulgated pursuant to law, or is incompatible with a clear mandate of public policy concerning the public health, safety or welfare.” (Emphasis added.) A few years prior to the enactment of CEPA, the New Jersey Supreme Court decided Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), which recognized a claim in either contract or tort for wrongful discharge in violation of public policy. (For a comparison of Pierce and CEPA, see Tartaglia v. UBS PaineWebber, 197 N.J. 81 (2008)).

CEPA authorizes aggrieved employees to bring civil actions with trial by jury to recover all forms of tort damages and authorizes the court to order reinstatement, award attorney fees, and impose civil fines. The New Jersey Supreme Court has noted CEPA’s goal is “to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (internal quotations omitted). And, as CEPA is a remedial statute that “promotes a strong public policy of the State,” it “should be construed liberally to effectuate its important social goal.” Battaglia v. United Parcel Serv., 214 N.J. 518, 555 (2013) (internal quotations omitted).

An employee who bases a CEPA (or Pierce) retaliation claim on complaints about unsafe working conditions must either identify a specific law, rule, or regulation that the employer allegedly violated relating to the workplace or object to a policy or practice that is incompatible with a clear mandate of public policy concerning public health or safety. The claim cannot be premised on an employee’s personal beliefs as to the impropriety of an employer’s practices. Compare Abbamont v. Piscataway Twp. Bd. of Ed., 138 N.J. 405 (1994) (unsafe ventilation system in metal shop in violation of health and safety regulations served as proper basis for CEPA claim), with Hitesman v. Bridgeway, 218 N.J. 8 (2014) (employee’s personal belief as to employer’s alleged improper handling of infectious diseases not a basis for a CEPA claim).

In terms of the COVID-19 crisis, a series of Executive Orders requires workplaces to observe a variety of safety requirements concerning, e.g., sanitization, distancing of workers, number and types of workers permitted at the worksite, and facial coverings. Violators of these requirements are subject to prosecution as disorderly persons. As a result, the courts are likely to permit employees who claim to have been retaliated against for complaining about violations of these requirements to use these Executive Orders as the basis for a CEPA claim. In this regard, it should be emphasized that an employee bringing such a claim will not be required to prove the employer actually is in violation of the Executive Order, only that the employee had an objectively reasonable belief that a violation occurred, which is a question for the jury. Dzwonar, supra, 177 N.J. at 464.

Another avenue employees can take to seek redress for employer retaliation arising from complaints about unsafe working conditions is the Occupational Safety and Health Administration (OSHA). Section 11(c) of the Occupational Safety & Health Act, 29 U.S.C. §660(c) (“the Act”), protects employees from retaliation for exercising a variety of rights guaranteed under the Act. OSHA will investigate, as it deems appropriate, allegations of employer retaliation arising from such employee conduct as making an internal complaint about unsafe working conditions, filing a safety and health complaint with OSHA, reporting an illness, requesting personal protective equipment, or requesting guidance from OSHA or some other regulatory agency. Section 17 of the Act, 29 U.S.C. §666, provides for civil and criminal penalties. Although the Act does not provide for a private right of action, Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1164 (3d Cir. 1992), retaliation against an employee who has asserted a violation of the Act’s regulations may provide the basis for a CEPA claim. Hernandez v. Montville Twp. Bd. of Ed., 354 N.J. Super. 467 (App. Div. 2002), aff’d, 179 N.J. 81 (2004).

Complaints About Teleworking

In relevant part, Governor Murphy’s Executive Order 107 provides:

All businesses or non-profits in the state, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work from-home arrangements. For purposes of this order, “telework” means the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.

Subsequent guidance from the “New Jersey Covid-19 Information Hub” emphasizes this requirement.

The Executive Order does not require an employee who wishes to telework to demonstrate any specific COVID-19 reason (personal health, family circumstances) for doing so. Thus, at least while the Executive Order is in place, unless an employer can demonstrate that it is impracticable to permit a given employee to telework, terminating or taking other disciplinary action against an employee who complains about not be allowed to telework creates the potential for a CEPA claim.

Families First Coronavirus Response Act (FFCRA)

The FFCRA requires employers with fewer than 500 employees to provide paid leave through the end of 2020 to its employees for the following COVID-19 related reasons: the employee is (1) subject to a government quarantine or isolation order, (2) has been advised by a health-care provider to self-quarantine, (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis, (4) is caring for an individual subject to quarantine or advised to self-quarantine, (5) is caring for a child whose school or place of care is closed, or (6) is experiencing any other substantially similar condition specified by the Departments of Health and Human Services, Treasury, and Labor. Pub. L. No. 116-127, 134 Sat. 178, §§5102, 5110(2) (Mar. 18, 2020). Employers are generally entitled to tax credits for their FFCRA payments. Id. at §§7701(a), 7002.

Employer violations with regard to reasons (1), (2), and (3) are subject to the enforcement provisions of the Fair Labor Standard Act, 29 U.S.C. §§216, 217. Violations with regard to reasons (4) and (5) are enforced under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. The FFCRA expressly prohibits employers from firing, otherwise disciplining, or discriminating against any employee who files a complaint or institutes a proceeding under or related to the FFCRA. Id. at §5104(2). The filing of a complaint will likely be interpreted to include the making of oral or written internal complaints, as well as complaints to regulatory bodies. See Shakib v. Back Bay Restaurant Group, 2011 WL 4594654 at *7 (D.N.J. Sept. 30, 2011).

Conclusion

Employers need to become familiar with their COVID-19 workplace safety obligations under the relevant Executive Orders and state and federal regulations and guidances, as well as with their obligations under the FFCRA. To minimize potential whistleblower claims, employers would do well to advise their employees, including supervisors, that any COVID-19 related complaints will be taken seriously and appropriately addressed and that retaliation against employees who register complaints or concerns will not be tolerated.

Of course, during the present crisis, employers will continue to make personnel decisions as circumstances warrant. But the potential for COVID-19 lawsuits or governmental investigations for the foreseeable future highlights the need for employers to carefully think through those decisions with regard to employees who have raised COVID-19 issues and to make sure that the legitimate business reasons for those decisions are well documented.

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Reprinted with permission from the August 24, 2020 issue of the New Jersey Law Journal. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.</p