Every employee sees and hears things around the workplace. It’s hard not to. Sometimes employees see, hear, or are asked to be involved in something they don’t feel comfortable doing because they believe it is wrong or illegal. Understandably, many of these employees are afraid of the potential repercussions of reporting or protesting what they’ve seen, heard, or been asked to do. But before you decide to follow the three monkeys and “see no evil, hear no evil, speak no evil,” it is important to know how and when you are protected for speaking out against wrongful conduct in the workplace.
Under New Jersey law, someone who reports or speaks out against a wrong in the workplace known as a "whistleblower." A whistleblower is protected from retaliation by their employer when he/she discloses or threatens to disclose an activity that they reasonably believe violates a law or is criminal or fraudulent. The whistleblower is also protected when he/she testifies in front of or provides information to a court or other public body investigating a violation of law. In addition, a whistleblower is protected when he/she objects to or refuses to participate in any activity that he/she reasonably believes violates a law, is fraudulent or criminal, or “is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” In determining whether the complained of conduct “is incompatible with a clear mandate of public policy,” courts balance the interests of the employer, employee, other affected individuals, and the public. The complained of activity must have a public impact; a private disagreement about the whistleblower’s employment is not enough to provide whistleblower protection.
In addition, it is important to note that, under New Jersey law, employees must have a reasonable belief that the conduct violated a law or public policy or was criminal or fraudulent. While this does not require an employee to know the specific nuances of the law or to prove that the law was actually violated, the employee’s complaint must based on activity that is actually occurring and must reasonably think that a law or public policy was violated by such activity.
Protection for whistleblowers varies depending on the state (NY is different from NJ) and there are various exceptions to the New Jersey statute. In the next few weeks, I will discuss addition whistleblower-related topics, so stay tuned.