By Ty Hyderally, Esq. and Kenny Delgado

In late 2024, the New Jersey Appellate Court decided to reverse and vacate summary judgment in Obiedzinski v. Twp. of Tewksbury, 480 N.J. Super. 45 (App. Div. 2024). The Court’s decision further expanded the state’s whistleblowing law, the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”).  The Court expanded CEPA to protect more independent contractors in the employment world from being subjected to whistleblower retaliation. The decision is one of numerous appellate Court decisions that have expanded CEPA and employers should be sure to understand who is protected from retaliation under the statute. Although Obiedzinski is very specific and relates to municipal tax assessors, it is indicative of the State’s interest in ensuring whistleblower protections to workers in varying fields and with varying classifications.

The statutory language of N.J. Stat. § 34:19-3 (“CEPA”) states that “An employer shall not take any retaliatory action against an employee. . .” before listing the protected actions of an employee. Initially, this language was used to exclude independent contractors from CEPA protections as the state of New Jersey clearly distinguishes between employee rights and the rights of an independent contractor.  However, case law has changed the application of CEPA expanding it from its once narrow scope to a scope more befitting the expectation of the law makers.

Expanding CEPA

As the Courts dealt with who was protected by CEPA, they decided that it was not determinative whether the employer referred to the worker as an independent contract as opposed to employee. Courts analyzed the wording within the statute and noted that persons who were protected are, “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. § 34:19-2 (LexisNexis, Lexis Advance through New Jersey 221st Second Annual Session, L. 2025, c. 38 and J.R. 5).  This definition in the statute made it clear to the Court that simply accepting designations by employers and even the ABC test was not appropriate to maintain the spirit of CEPA as a strong protection for workers in the State of New Jersey.   The Court referred back to a 2006 decision in furtherance of its opinion and noted, “…we conclude that CEPA’s definition of “employee” not only has the capacity to include workers who may be classified at common law as independent contractors but that the definition should be construed broadly and principally focus on the “control and direction” factor expressly mentioned in N.J.S.A. 34:19-2(b).” D’Annunzio v. Prudential Ins. Co. of Am., 383 N.J. Super. 270, 280 (App. Div. 2006).

Although the courts continue to grapple with who is protected under CEPA, it is clear that just because an employer defines a worker as an independent contractor, or even if the worker refers to herself as an independent contractor, does not mean that the worker is stripped of protections from whistleblower retaliation.  If you have any questions regarding your rights as an employee, you should seek out an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-two (22) years!

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