O McGreevey signed into law a bill the information that had to be - - PDF document

Employment Law Alert

December 2004

Amendment to New Jersey’s Whistleblower Protection Statute Imposes New Posting and Annual Notice Obligations on Employers

By Martha L. Lester, Esq. and Elizabeth Rogers Hall, Esq.

O

n September 14, 2004, former Gov. James McGreevey signed into law a bill amending the New Jersey Conscientious Employee Protection Act (“CEPA”). The bill took effect immediately upon signing and augments CEPA’s notice requirements for New Jersey employers. As New Jersey’s whistleblower protection statute, CEPA, among other things, prohibits employers from taking any retaliatory action against an employee who “blows the whistle” by disclosing

• r threatening to disclose, objecting to, or refusing

to participate in any activity, policy, or practice that the employee reasonably believes is illegal or harmful to the public health, safety, or welfare. Prior to the amendment, CEPA required all employers to display conspicuously in the workplace a notice informing employees of their “protections and obligations” under CEPA. The amendment now requires employers with 10 or more employees to distribute a copy of the notice to employees on an annual basis, in addition to complying with the Statute’s posting obligations. Distribution to employees may be made either by electronic means or by hard copy. Also new is the requirement that posted and distributed notices be in both English and Spanish. Employers retain the discretion to issue a notice in any other language spoken by the majority of their employees. With the amendment, lawmakers also changed the information that had to be provided in the

• notice. Before the amendment, the Statute

required employers to include information about CEPA’s “rights and procedures” and to identify the individual designated by the employer to receive complaints from employees about activities, policies, or practices that they believed were illegal

• r incompatible with public policy. In the new

notice, employers also must provide information about CEPA’s “protections and obligations.” Because the difference between “rights and procedures” and “protections and obligations” is not explained in the amendment, exactly how the amendment changes the substance of the notice remains unclear. In interpreting the amendment, employers may find guidance in the recent notice issued by the Commissioner

• f

Labor and Workforce Development (“Commissioner”). The amendment directs the Commissioner to make available to employers Spanish and English versions of the notice fulfilling the new requirements. The new notice issued by the Commissioner includes a detailed description of the activities that are afforded protection under CEPA, suggesting that the phrase “protections and obligations” means the class of whistleblowing activities that CEPA protects from retaliation. For your convenience,

G

This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only. 65 Livingston Avenue www.lowenstein.com

L

Roseland, New Jersey 07068-1791 Telephone 973.597.2500 Fax 973.597.2400

we have included the English version of the Commissioner’s notice. Employers may obtain a copy of the Commissioner’s notice directly by contacting the New Jersey Department of Labor and Workforce Development. We strongly urge all employers to update their CEPA notices as soon as possible. We also recommend that employers with 10 or more employees immediately distribute a copy of the new notice to their employees and begin developing an implementation strategy for annual distribution of the notice. Finally, it may be prudent for all employers to offer a training session on CEPA or incorporate a discussion of CEPA’s rules into other training sessions. A training session gives employers an opportunity to clarify that not all employee complaints about the workplace receive protection under CEPA and that CEPA does not permit employees to substitute their judgment for the business judgment of their employers. If you have any questions or concerns about the recent developments in the law in this area and its potential application to your workplace, please contact Martha L. Lester, Esq., Chair of the Employment Practices Group, at (973) 597-2388 or Elizabeth Rogers Hall at (973) 597-6150. We would be pleased to provide you with advice respecting your employment practices and workplace compliance issues.

New Edition Coming Soon

The new edition of “The Practical Guide to Federal and New Jersey Employment Law: The Employers’ Resource,” Executive Editor, Martha L. Lester, includes:

Federal Law Updates Easy-to-Follow Index New In-Depth Chapters

This Guide, published in connection with the New Jersey Business & Industry Association, is the resource for New Jersey employers seeking to comply with applicable federal and state laws, regulations and procedures in the employment-related area. It provides management with critical information concerning existing laws, emerging trends, most frequently asked questions, and practical tips on managing the workforce and workplace. You may also wish to obtain a copy of our current edition, “A Practical Guide to New Jersey Employment Law: The Employer’s Resource,” Martha L. Lester, Executive Editor. To obtain a copy, please contact Katherine Teixeira Christie at 973.422.6448 or e-mail kteixeira@ lowenstein.com.

G