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"Sooner or later, everything old is new again." - Stephen King, The Colorado Kid

For employees here in New Jersey, it is time to fire up your time machines because workers' rights are under attack. Just like bellbottom jeans once swung back around into style, discrimination against and silencing workers is back on the rise. Of course, it was to be expected that such an attack would come from corporate America, insurance companies and the conservative right wing. But now, those attacks are coming directly from the judiciary where new requirements are being read into laws that never existed when they were passed by the legislator.

Take for example the case of James Hitesman v. Bridgeway, Inc., a matter decided by the Supreme Court of New Jersey last June. Mr. Hitesman, a registered nurse at a nursing home, alleged that he was terminated in retaliation for complaining about what he perceived to be inadequate infection control which was a threat to patients' safety. In support of the reasonableness of that complaint, Mr. Hitesman pointed to the American Nursing Association Code of Ethics and two internal Bridgeway policy documents. He won at trial. This means that a jury believed that he had complained about what he believed to be a threat to quality of patient care and that he was terminated in retaliation for the same. However, after winning at trial, the Appellate Division reversed the verdict and the Supreme Court affirmed that reversal finding that the sources cited by Mr. Hitesman did not speak directly to patient care or a clear mandate of public policy. However, this holding directly ignores the language and purposes of the statute at issue, the Conscientious Employee Protection Act ("CEPA"). In 1998, CEPA was amended to protect an employee who is a licensed or certified healthcare professional who objects to what he reasonably believes constitutes improper quality of patient care. It is simply shocking that the Court found that a nurse who premised his objection upon the ANA Code of Ethics was not entitled to whistleblowing protection. This holding does not serve to protect patients or residents of nursing homes, but instead serves only to protect the corporate entities which own those homes and place the residents at risk. 

More recently, the Supreme Court of New Jersey considered the matter of Ilda Aguas v. State of New Jersey, a sexual harassment matter. In what has been described as a "boon to New Jersey employers, "the Court held that employers can rely upon the company's anti-harassment policy as an "affirmative defense" to an employee's claim of harassment. Now, we all know that most employer policies are not worth the paper they are written upon. A giant stack of papers are given to an employee on the first day, and the employee eager to start signs off on most without even reviewing the same. The Court adopted the federal anti-harassment standard, which provides an employer with an affirmative defense when it can establish that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and the employee "unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." The Court, therefore, held that the defendant could avoid liability by showing that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the plaintiff unreasonably failed to take advantage of the internal protocols and procedures. Predictably, this was the position advanced and advocated by the Employer's Association of New Jersey.

Similarly, the New Jersey Appellate Division, in the matter of Wolff v. Salem County, has recently limited a plaintiff's ability to assert a retaliation claim. The Wolff matter concerns an issue of special concern to public employees. In that matter, the Appellate Division considered a 2012 ruling from the Supreme Court of New Jersey in another troubling matter, Winters v. North Hudson Regional Fire & Rescue, and held that where claims of retaliation are raised during an administrative disciplinary proceeding, an individual is barred from asserting a separate civil claim for retaliation. An administrative hearing is one held before an Administrative Law Judge, not a jury, and without the same access to discovery and importantly damages. Under this relatively new line of reasoning from the Court, a public employee is faced with the impossible choice of raising retaliation as a defense to inaccurate charges, and thereby depriving him or herself of the ability to bring a civil suit for monetary damages before a jury, for not raising the issue in order to preserve that civil claim and thereby potentially losing his or her job. This is clearly a rollback of the anti-retaliation rights of New Jersey employees.

New Jersey was once a shining light on the hill of employee rights. This should always be our goal. Unfortunately, the disturbing trend is that employee rights are being rollback and we are being passed by states such as Missouri, whose judiciary is taking active steps to protect employees. We, in New Jersey, are going back to a time where workers have few protections. It is a danger not only to our friends, families and neighbors, but to the public at large. By empowering businesses to ignore liability for discrimination and by empowering businesses to silence whistleblowers, our entire community is put at risk. 

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Costello & Mains, LLC

18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054

Toll Free: 800-421-0212
Phone: 856-291-0642
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