Internal Complaints
Before being able to enjoy the protections of CEPA, an employee must first, in normal circumstances, detail to a supervisor, in writing, the alleged wrongdoing, thus providing the employer with a reasonable opportunity to correct the problem. N.J.S.A. 34:19-4; Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 97 (2000) (within reason, an employee may complain to any supervisor, not just those designated by the employer).
However, in emergency situations, internal reporting is not required by the Act, nor is it required where an employee reasonably believes the conduct in question is already known to one or more supervisors. N.J.S.A. 34:19-4 (An employee is not required to give their employer notice when “the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature.”); See Norenius v. Multaler, 2008 WL 4162878 (App. Div. 2008).
Prosecuting a Claim
The statute of limitations for a CEPA claim is one (1) year, and it does not benefit from the discovery rule. N.J.S.A. 34:19-5; Villalobos v. Fava, 342 N.J. Super. 38, 48-50 (App. Div. 2001) (noting that no case has found the discovery rule applicable to CEPA claims). However, where there is a continuing violation, the limitations period begins when the last act of retaliation occurs. Roa v. Roa, 200 N.J. 555 (2010); Kane v. Public Service Electric & Gas, 2019 WL 385769, *5 (App. Div. 2019). Additionally, the Third Circuit has held that the notice requirements of the Tort Claims Act do not apply to CEPA. Brennan v. Norton, 350 F.3d 399, 431-32 (3d Cir. 2003).
When bringing a CEPA claim, a plaintiff may commence suit in any court of competent jurisdiction and has the right to trial by jury. N.J.S.A. 34:19-5. However, where there was an agreement to arbitrate, these clauses are enforceable in appropriate circumstances. See Littman v. Morgan Stanley Dean Witter, 337 N.J. Super. 134, 146-48 (App. Div. 2001); Fave v. Neiman Marcus Group, 2014 WL 1884337, at *5-6 (App. Div. 2014) (plaintiff’s claim that she did not read or understand the arbitration agreement that she signed was not enough to invalidate it.); But see Leodori v. Cigna Corp, 175 N.J. 293, 302-07 (2003) (employee’s assent to the arbitration provision in an employee handbook was not clear).
CEPA Waiver
One of the most significant considerations to be made when bringing a CEPA claim is its effect on other claims. As the full panoply of tort damages (injunctive relief; reinstatement of a former employee to the same or equivalent position; emotional distress; reinstatement of fringe benefits or seniority rights; compensation for lost wages and benefits; and punitive damages) is available under CEPA, once an action is instituted under CEPA, the employee’s rights and remedies under any other contract, selective bargaining agreement, state law, rule or regulation or under the common law will be deemed waived. Further, note that per quod damages have been rejected as being available under CEPA. Jones v. Jersey City Med. Ctr., 20 F.Supp. 2d 770 (D.N.J. 1998); Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476 (App. Div. 1994).
Notwithstanding, the waiver provision applies only to substantially related claims based on the same conduct. It does not apply to substantially independent claims. Young v. Schering Corp., 141 N.J. 16, 29 (1995); See e.g. Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 318 (App. Div. 1997) (noting “[a] claim must have a basis independent of the CEPA claim in order to be exempt from the waiver provision.”); Boyle v. Quest Diagnostics, Inc., 441 F.Supp. 2d 665, 671-72 (D.N.J. 2006) (claims for wrongful discharge and breach of the implied covenant of good faith and fair dealing were waived, whereas claims for breach of contract based on equitable estoppel for denial of promotion was not waived).
Significantly, the waiver provision is invoked merely by the institution of a CEPA action. Therefore a claim will not be saved merely because a court dismissed the underlying CEPA claim. Espinosa v. County of Union, 2005 WL 2089916, at *11 (D.N.J. Aug. 30, 2005), aff’d, 212 F. App’x 146 (3d Cir. 2007), cert. denied, 128 S. Ct. 144 (2007); But see Chadwick v. St. James Smokehouse, Inc., 2015 WL 1399121, at *11 (D.N.J. March 26, 2015) (no CEPA waiver until discovery is completed.).
Remedies
As briefly mentioned above, the remedies available under CEPA are quite expansive. CEPA allows for reinstatement of a former employee’s same or equivalent position, lost wages and benefits; emotional distress damages; reinstatement of fringe benefits or seniority rights; and punitive damages. It is for this reason, as pointed out by the New Jersey Supreme Court, that the legislature in enacting CEPA “included a statutory provision that deems the filing of a CEPA complaint to be an election of remedies.” Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 103 (2008). Therefore, as cautioned above, a plaintiff considering a CEPA claim must afford due consideration to CEPA’s waiver provision.
Conclusion
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