Newsletter April 2015

Newsletter April 2015


 

CEPA and Pierce Claims: What’s the Difference?

By: Ty Hyderally, Esq.April 2015 Newsletter
 

The Conscientious Employee Protection Act (“CEPA”) is a New Jersey statute which protects employees who face retaliation for blowing the whistle on their employer’s illegal activities. N.J.S.A. 34:19-1. A Pierce claim is a common law cause of action for whistleblower retaliation, which was defined by the New Jersey Supreme Court in Pierce v. Ortho Pharmaceutical. 84 N.J. 58, 72 (1980). Although CEPA claims and Pierce claims both protect employees who suffer retaliation for their whistleblowing, there are several key differences between the two claims.

As discussed in the article below, CEPA contains a waiver provision which requires a plaintiff to choose between a CEPA claim and a Pierce claim. However, a Plaintiff need not elect which remedy to pursue until after the completion of discovery, which is needed to determine which cause of action is applicable because of the key differences between these two claims. These differences include:

  1. Statute of limitations. The statute of limitations for CEPA is one year. N.J.S.A. 34:19-5. The statute of limitations for Pierce claims is two years for tort claims and six years for contract claims. Montells v. Haynes, 133 N.J. 282 (1993); Pierce, 84 N.J. at 72.
  2. Whistleblowing activity covered. While Pierce claims may require an employee to report the employer’s illegal conduct to a public agency, CEPA also protects employees who blow the whistle to a supervisor. N.J.S.A. 34:19-2(d).
  3. Attorney’s fees. A prevailing plaintiff is entitled to attorney’s fees under CEPA. N.J.S.A. 34:19-5e. However, a Pierce claimant can only collect attorney’s fees under certain circumstances, such as a retaliatory discharge in violation of the Civil Rights Act. N.J.S.A. 10:6-2.
  4. Retaliatory Actions protected against. CEPA claimants only need to suffer an “adverse employer action” in order to have a valid claim. N.J.S.A. 34:19-3. An “adverse employer action” is defined in CEPA as discharge, suspension, demotion, and adverse change in conditions of employment. N.J.S.A. 34:19-2(e). In contrast, Pierce claimants must be terminated in order to have a common law claim. Pierce, 84 N.J. at 72.

Despite the fact that CEPA claimants can bring a claim for retaliation which is short of termination, they are generally required to complain about the retaliatory action internally to their employer. N.J.S.A. 34:19-4. There are two exceptions to CEPA’s internal complaint requirement. An employee does not have to complain to her or his employer internally if the employee is reasonably certain that one or more supervisors already know about the problem, or if the employee reasonably fears physical harm or that the situation is emergent. N.J.S.A. 34:19-4. In contrast, Pierce claims do not require an internal complaint but usually do require a complaint to an outside agency. Young v. Schering Corp., 141 N.J. 16, 27 (1995). However, some courts have determined that Pierce complaints only require an internal expression of a disagreement with a corporate policy, directive, or decision based on a clear mandate of public policy. New Jersey, 6 Emp. Coord. Employment Practices §62:32. Thus, although external complaints are often evidence of an employee’s disagreement with corporate policy, it is not the exclusive method. For example, Pierce claims have been sustained where an employee was terminated for refusing a random illegitimate drug test and for requesting a personnel file to prove discriminatory and retaliatory practices on behalf of the employee. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 (1992); Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. 189 (1988).

CEPA claims and Pierce claims are substantially similar in principle, but there are key differences that would make one cause of action more favorable than the other, depending on the circumstances of the case. Thus, whether the Plaintiff brings a Pierce claim or a CEPA claim for whistleblowing activity will depend upon a number of factors.

By Malcolm Thorpe and Jennifer Vorih, Esq.

 
 

Can CEPA Co-exist With Other Claims?

By: Ty Hyderally, Esq.
 

The Conscientious Employee Protection Act (“CEPA”) is a New Jersey statute that protects employees who are subjected to adverse employment actions for taking part in whistleblower activity. N.J.S.A. § 34:19-1. CEPA was enacted to codify prior common-law causes of action for whistleblower retaliation, defined by the New Jersey Supreme Court in Pierce v. Ortho Pharmaceutical, 84 N.J. 58, 72 (1980) (commonly referred to as a “Pierce” claim).. Young v. Schering Corp., 141 N.J. 16, 26, (1995).

CEPA contains a waiver provision, which forces a plaintiff to choose whether to pursue a CEPA claim or another claim for retaliation under the same set of facts. N.J.S.A. § 34:19-8. Pierce claims are thus often dismissed because of the legislature’s intent to codify all common law retaliation claims within CEPA. Id. at 29. However, both CEPA and Pierce causes of actions may be pled in the complaint, as long as one cause of action is dropped before trial. In Maw v. Advanced Clinical Communications, Inc., the Appellate Division held that it is inappropriate to dismiss a Pierce claim until the plaintiff has had an opportunity to take discovery in order to determine which cause of action is applicable. 359 N.J. Super. 420, 440-41 (App. Div. 2003), rev’d on other grounds, 179 N.J. 43 (2004).

The CEPA waiver provision has also been interpreted to prevent an employee from pursuing other statutory causes of action. Young, 141 N.J. at 27. It is important to note, though, that this waiver does not prohibit employees from asserting other independent claims, because it excepts those rights, privileges and remedies which are not afforded by CEPA. N.J.S.A. § 34:19-8. CEPA’s waiver provision was intended to waive all parallel claims, but not to prevent other causes of action stemming from the employee-employer relationship. See, Casper v. Paine Webber Grp., Inc., 787 F. Supp. 1480, 1509 (D.N.J. 1992). As a result, if an asserted claim is substantially unrelated to a retaliatory discharge, then the CEPA wavier provision does not preclude the claim and it may be included without error. Young, 141 N.J. at 31.

So, can CEPA co-exist with other claims? Yes. CEPA in no way precludes a plaintiff from pleading additional claims which do not require a finding of retaliation. Further, a plaintiff can plead both CEPA and another retaliation claim, but must drop one prior to trial.

By Malcolm Thorpe and Jennifer Vorih, Esq.

 
 

Watchdog Employees Look to CEPA for Protection

By: Ty Hyderally, Esq.
 

A case pending before the New Jersey Supreme Court poses the question of whether “watchdog employees” are protected under New Jersey’s Conscientious Employee Protection Act (“CEPA”). CEPA protects employees from retaliation if they expose their employer’s illegal practices. The term “watchdog employees” refers to workers who are hired to ensure the employer’s compliance with the law. The Appellate Division has come to different conclusions on whether a “watchdog employee” is covered by CEPA. In Massarano v. New Jersey Transit, the Appellate Division held that an employee whose job was to report security breaches was not a “whistle-blower” under CEPA. 400 N.J. Super. 474, 491 (App. Div. 2008). The Plaintiff in Massarano was not protected by CEPA because her decision to go over her supervisor’s head, rather than the reporting of a security breach, was what led to poor treatment. Id. In Lippman v. Ethicon, Inc., the Appellate Division refused to adopt Massarano, finding that an employee’s job responsibilities are not outcome-determinative for a whistle-blower claim under CEPA. 432 N.J. Super. 378, 381 (App. Div. 2013). The New Jersey Supreme Court granted certiorari to review this unsettled issue. Lippman v. Ethicon, Inc., 2014 N.J. LEXIS 317, 1 (N.J. 2014).

In Lippman, Joel Lippman, M.D., a former employee of a Johnson & Johnson subsidiary, claims he was fired for demanding the recall of products he believed were harmful to the public. The Appellate Division held that Lippman fit the definition of a “whistle-blower” under CEPA and overturned the trial court’s decision. Lippman, 432 N.J. Super. at 408. Plaintiff appealed and on March 14, 2014, the New Jersey Supreme Court granted certification. At oral argument on January 20, 2015, Justice Albin posed the question of whether a company could simply silence someone on a quality control board by firing them and replacing them with someone who is willing to put products on the market. Francis Dee, an attorney for one of the subsidiaries, argued that companies should be allowed to “performance manage” their employees and decide who sits on quality control boards. He argued that if this decision were removed from the employer’s control it would result in a class of “untouchable employees.”

Lippman’s attorney, Bruce McMoran, argued that all employees are protected under CEPA, since whistleblowing serves as a check on employers. He also argued that, because plaintiffs bear the burden of proof in maintaining a CEPA claim and causation is not automatically established, employers’ fear of “untouchable employees” is unsubstantiated.

It is difficult to predict how the Supreme Court will rule on this issue. The Lippman and Massarano cases present two very different contexts. Joel Lippman sat on a quality control board and the Appellate Court expressed concern over an employer’s interest in removing such a watchdog employee who engages in whistle-blowing. Unlike Joel Lippman, Barbara Massarano reported the security breach to individuals higher up in the company rather than to her immediate supervisor. Massarano, 400 N.J. Super. at 478. This angered her immediate supervisor, who subsequently treated her poorly and refused to speak with her for weeks. Id. at 480. However, the trial court found and the Appellate Court affirmed that her supervisor’s subsequent treatment of Massarano was not due to any whistle-blowing activities, but rather because she went over her supervisor’s head before approaching him. Id. at 491. Thus, due to the substantially different factual circumstances, whether or not the Supreme Court affirms the decision in Lippman, finding that Joel Lippman was a whistle-blower employee under CEPA, it may limit its holding to similar contexts.

By Yoana Yakova and Jennifer Vorih, Esq.


These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

  • “I want to sincerely thank you and your staff for your resolve and professional zeal in resolving my issues with [company name removed for privacy reasons]. I especially want to thank Rob Szyba who handled these proceedings with dignity and a great deal of knowledge and professionalism. He knows what buttons to push and when to push them. He is an asset to your organization. I will gladly recommend your services to anyone in need. It was a privilege to deal with you and your team.”
    J.B.
  • “It has been my pleasure to work with Ty through the ABA's Employment Rights and Responsibilities Committee. His contributions to the Committee have been significant due to his knowledge of employment law and his tireless devotion to teaching trial skills. His service to the profession and his clients is commendable.”
    Paula Ardelean
  • “Ty is dedicated to his work and his clients. He knows his stuff, and he goes the extra mile to do the best job possible. Ty is a pleasure to work with!”
    Piper Hoffman
  • “It is with pleasure that I recommend Ty. He is a tireless advocate on behalf of employees and their concerns. His efforts are demonstrated not only in his practice, but also in his exceptional additional efforts to represent this community in professional associations, such as the ABA. He has the knowledge base and the tireless effort that makes working with him productive, but always enjoyable too.”
    Darlene Vorachek
  • “I have worked with Ty on several legal presentations. I represent employers, and Ty has invited me to participate as a panelist representing employers' perspectives on labor and employment matters. Ty is always well-prepared and very knowledgeable about developments in employment law, and is always a pleasure to work with.”
    Chris Dalton
  • “Ty is an excellent lawyer who completely understands the legal process and does everything in his power to help his clients. He was a pleasure to work with and would recommend him to anyone seeking his expertise.”
    Joseph Alvaro
  • “Ty is a widely recognized expert in the area of employment law. His aggressive representation of clients is backed up by an extraordinary breadth of knowledge and attention to detail.”
    Edward Kopelson
  • “I have known Ty professionally for more than two years. He is nationally recognized as one of the best employment attorney's in the country and I know his practice will continue to grow!”
    Betsy Zaplin
  • “Ty was a great help for my associate and I during litigation. He showed the highest degree of professionalism and did in fact help us to achieve the best end result possible. Mr. Hyderally comes highly recommended.”
    Christopher Power
  • “Ty is an exceptional attorney. Ty strives for and attains great results, in a fair and ethical manner. I value his professionalism, integrity and creativity. His ability to relate to the client and colleagues on various levels makes him very personable and a real asset.”
    Betty MacKnight
  • “Ty Hyderally is a light of hope at times when all seems grim and hopeless. A brilliant lawyer focused on labor and business law. Mr. Hyderally has the ability to combine his knowledge of the law with economic sense, strategic thinking and level headed decision making that more often than not results in a sensible conclusion that ultimately equates to a positive result for his client. Mr Hyderally is a pleasure to work with and a person you would want to have on your side of the table.”
    Richard Sapienza
  • “I have known Ty Hyderally and his firm for a number of years through our shared affiliation with the National Employment Lawyers Association. Ty has consistently impressed me both with his leadership qualities as well as the quality of workmanship that he and his firm generate. I have reviewed some of his firm's work product, including a sample initial client letter, which not only contained excellent advice to new clients but also included cutting edge information as to how to properly address social networking issues. Without hesitation, I would highly recommend Ty Hyderally.”
    Fred Shahrooz Scampato
  • “I would highly recommend the Law Office of Ty Hyderally to anyone who is in need of representation in a legal matter. Ty is one of the most knowledgeable and professional individuals that I have ever met. He not only protected my rights, but also added a personal touch in his approach which helped in relieving some of the stress of my situation. He is a hard working, kind hearted individual who goes out of his way to make your problem his and provides great results in the end.”
    Mike Fischer
  • “What impressed me most about Ty was that he delivered exactly what he promised! Very well versed in his area of practice, and extremely respected by his peers and colleagues, which put me at ease knowing he was representing me! Thank you Ty!”
    Dan Verdun
  • “I have been involved with Ty Hyderally both as an adversary in employment litigation, and when I have acted as a Court appointed Mediator in employment litigation matters in which Ty represented plaintiffs. In both types of situations, he has represented his clients very well, with an excellent command of the issues, and he has shown himself to be well-prepared, reliable, and sensitive to the concerns of his clients. He has conducted himself in a highly professional manner at all times. I have referred potential plaintiffs in employment matters to him (I represent management/defendants in such matters), since I believe he is highly qualified to consider their circumstances.”
    Wayne Positan
  • “Ty helped us in my small business with a very delicate matter involving what was once a very cherished employee who had made some bad choices. Because it was also emotional for me and my management team, we valued the professionalism and expertise that Ty offered. It was comforting to know we could rely on his service through that very challenging time and handle it with compassion and in compliance with the law. I would use him again and recommend him wholeheartedly!”
    Sherry Blair
  • “Ty is detail oriented yet moves quickly to get results. He contemplates each step and what action should be taken. Ty looks out for his client's best interest and is available to talk during evening hours when it is more appropriate to discuss options to take from home. Also, Ty is expedient in getting information needed in order to be cognizant of finances. I highly recommend Ty for legal services, especially with employment law.”
    Jeff Martens
  • “If the opportunity arises where a "name brand" attorney is needed, then Ty Hyderally is the only choice. Those in the know are aware that his record of success for his clients is outstanding and that his knowledge of his field is way above the rest”
    Jeff Baron
  • “Ty Hyderally is a lawyer's lawyer. I, also, used to handle plaintiffs' employment cases, but over time, those cases became more and more complicated and costly to pursue. They began to require the attention of a legal specialist. I decided against handling them personally. I was delighted when I met Ty. Now, I refer people to him all the time. I know that he will give the best advice and get the best results possible. I hope my employees don't have his card.”
  • “Many of my executive clients need to negotiate employment contracts or employment confilcts with their employer. As an executive coach, I support their efforts in all domains of their lives including recommending a lawyer when they have these employment contractual needs, I recommend Ty. Not once have I had any negative feedback from any client and all of my dealings with him have been very satisfying.”
    Dan McNeill
  • “Ty is a very knowledgeable Attorney, who has demonstrated a very proven track record in handling Employment cases. His knowledge and assertive approach have made him a very successful Attorney.”
    John Mcnamara
  • “I actually first worked with Ty at McKenna McIlwain LLP in 2008. Already I was impressed by his professionalism, client list and reputation. In 2011 I moved back to Montclair after a few years back home in Oregon. Ty was in need of a temporary administrative assistant and invited me to join his team at their new, independent location. I learned a great deal working with Hyderally & Associates, P.C. They have earned their reputation as the hardest hitting, best representation available for employment matters in New Jersey and New York alike. They are attentive, fair, and go every extra mile to ensure due diligence. I am proud to have them on my resume and am happy for the experience of being part of such a busy, professional and fast paced team.”
    Mary Otte
  • “Ty secured settlements that were nothing less than outstanding for my clients/contacts that I have referred to him. The quick speed with which he achieved his results was a huge bonus to those clients.”
    Robert Kornitzer
  • “I have worked with Ty for years through the ABA Labor & Employment Law Section Employment Rights and Responsibilities Committee. Ty is a go-to source for exemplary presentations on trial practice. A tireless advocate for employee rights, Ty is an accomplished trial attorney and someone we can rely on and have repeatedly relied upon in mock trial presentations at our yearly conferences.”
    John Beasley
  • “Ty is a regular lecturer at continuing education programs for lawyers. This means that because of his abilities he is called upon to enhance the skills of lawyers who are already experienced. He is well regarded as a trial lawyer and as a provider of legal advice to clients. I find that his companionable persona makes it easier to accept and understand his thoughts and advice.”
    Arnie Pedowitz
  • “I have known Ty Hyderally for several years and can only describe him as an expert in all areas of Employment law. I have referred several people to him in connection with their legal concerns and on each occasion I have been met with very positive feedback from these individuals and businesses. I have personally sought his counsel relating to a variety of business strategy issues within my own Insurance practice. With his substantial experience and proven track record, I wholeheartedly recommend his services.”
    Matthew McGovern, Esq.
  • “Ty has represented me numerous times and I have always come out with positive results. He keeps you well informed at each step of the process and always makes you feel confident and secure. I highly recommend his services.”
    John Scardino Jr
  • “Ty and I worked at the same law firm Friedman Siegelbaum. I found him a pleasure to work with and an able and diligent attorney.”
    Joel Glucksman
  • “If ever someone needs an exceptional employment litigator, Ty is the first person that I think of. Not only is he incredibly intelligent, but he is able to craft litigation strategies to maximize his client's outcome. He is a relentless litigator, with great passion for his work. If you hire Ty, you will not be disappointed.”
    Noah B. Rosenfarb, CPA, ABV, PFS, CDFA
  • “Ty has been invaluable to me as a business owner with employee issues. His advice has been on point and redirected me in the midst of employee concerns. I would highly recommend him and his firm whenever you have employment concerns.”
    Philip Seaver
  • “If you are looking for one of the best attorney's in an employment related issue, look no further. Ty is national recognized as one of the best employment attorney in the country and I am thrilled to see his practice continue to grow!”
    Jon Lamkin
  • “Ty, has been a great help to me in times of need when I needed his advice on some business matters. He is always available 24-7 to help out whether it is a small/large task. I would highly recommend him and his firm in any legal matter that he specializes in.”
    Eric Reinstein
  • “I have been working with Ty for over 4 years. Ty is one person I would say pays attention to detail, works hard for his clients and gets the job done on time and with amazing results. I have referred clients to him and he has always given them star treatment was always up front and honest with them and they are so pleased with their outcomes and glad I made the introduction.”
    Carmen Bucco
  • “Ty was an adversary and never lost sight of his client's needs in seeking a resolution. I would not hesitate to recommend for plaintiffs in employment work. He is methodical and tenacious but fair and amenable to a just resolution.”
    Roger Jacobs
  • “My Husband and I hired Ty at a time when we thought all was lost. We had a different attorney on our case that just gave up on us. My husband contacted Ty and once he heard our case he immediately took action. Our case was settled within 3 months of Ty taking over. His experience and knowledge of employment laws are not only impressive but it is why he is very successful. Ty is also very compassionate about his clients and communicated with us every step of the way. I would recommend Ty Hyderally to anyone and everyone who is need of a great attorney. You too!! Will be satisfied.”
    Cynthia Ortiz
  • “I have referred clients to Ty for employment issues. They told me that Ty was knowledgeable, courteous and promptly handled their matters. I can easily recommend Ty for people with difficult employment cases.”
    Eileen Kohutis
  • “Working with Ty on various projects has been fantastic. He and his team are thorough and they understand how to get the job done correctly. When you have the chance to work with Ty you understand the meaning of not taking no for an answer. They work to understand clients needs and the resolve the issues at hand. I have seen firsthand what Ty and his associates bring to the table and I would recommend them to anyone needing assistance with employment law.”
    Darren Magarro
  • “I have worked with Ty Hyderally on the executive board of the New Jersey chapter of the National Employment Lawyers Association, and have discussed various employment matters with him. He is an excellent leader, always coming up with new ideas. Ty is truly an expert in employment law and I have found his analysis of both complex and simple matters to be dead on.”
    Leslie A. Farber
  • "Ty and I have worked together on a case getting ready for trial. We have also worked on trial advocacy presentations for the ABA. Ty is a very experienced litigator. He has great trial skills and connects well with his clients, the court and jury. He blends a sense of humor with knowledge of the law and facts. He is a very effective advocate.”
    Vanessa Kelly