Publicly traded employers should be aware that the U.S. Securities and Exchange Commission (“SEC”) recently adopted Final Rules implementing the whistleblower program under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act”). Consistent with the Final Rules, which become effective on August 12, 2011, employers should not interfere with an employee’s efforts to communicate with the SEC or take any adverse actions against an employee for exercising his or her rights under the whistleblower program. In addition, employers should have clear policies in place for employees to be able to report any perceived violations of federal securities laws and employees should be trained on the procedures for reporting any such violations. The Act creates a private right of action for whistleblowers who have suffered retaliation and remedies include reinstatement, double back pay with interest, litigation costs, expert witness fees, and reasonable attorney’s fees.
NJ Supreme Court Rules That Lost Wages are Recoverable Under CEPA Even in Absence of Actual or Constructive Discharge
In a case of particular interest to New Jersey employers, the New Jersey Supreme Court ruled on June 9, 2011, in Donelson v. DuPont Chambers Works (A-112-09) that an employee who files suit under the Conscientious Employee Protection Act (“CEPA”) may recover back and front pay, even if the employee was not fired or constructively discharged, if the employee can show that he became mentally disabled as a result of the employer’s retaliation. The Court rejected the conclusion of the Appellate Division that the same standards govern remedies under CEPA and the New Jersey Law Against Discrimination (“LAD”), and that a constructive discharge must be proven to obtain back and front pay damages.
New Jersey Supreme Court Holds That Employees Disciplined for Stealing Confidential Company Documents in Support of Discrimination Claims Can Sue for Unlawful Retaliation
The New Jersey Supreme Court has just announced a new test under which an employer may be held liable for unlawful retaliation when taking action against an employee who misappropriates and uses confidential company documents against the employer in support of a discrimination claim. Those who believe that simplicity is a virtue will not have their minds changed by the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corporation, in which the Court, by a 5-2 majority, established a complex and confusing seven-part “balancing test” for determining whether an employee’s wrongful taking of company documents nevertheless constitutes “protected activity” under the New Jersey Law Against Discrimination (the “LAD”). Applying this test, the Court held that the plaintiff in Quinlan could have been terminated for the wrongful taking of documents, but should not have been terminated for her attorney’s use of one of the documents at a deposition.