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October 2013 Archives

Lesson Learned: Reporting Violations at Work

Battaglia v. UPSNew Jersey Supreme Court, September 2011Male hand showing a business cardAn employee sued for retaliation in violation of the Conscientious Employee Protection Act (CEPA) and the Law Against Discrimination (LAD) when he was demoted and became depressed and missed 5 months of work.  He alleges that he was demoted because he had complained to HR that his supervisor was making inappropriate and derogatory comments about women.  The CEPA claim, which was dismissed, was based upon the employee’s complaint that numerous other employees were using company credit cards to pay for and drink alcohol at lunch.  That claim was dismissed as the employee didn’t provide enough factual evidence that he had complained about this behavior with enough specificity.The Supreme Court held that the LAD protects employees who make the complaint in a good faith belief that the conduct violates the LAD and then suffers retaliation.  The Supreme Court explains that the LAD was enacted to protect not only the civil rights of individual aggrieved employees but also to protect the public’s strong interest in a discrimination-free workplace.Lessons learned:
  1. Make sure that your complaint is sufficient specific as to the law or public policy being violated but also the facts, people, witnesses etc. involved.
  2. Make sure you have well documented proof of the violations that you can rely on to prove your case in court.

Whistleblower Actions in New Jersey - CEPA

Whistleblower Action RetaliationThe New Jersey Conscientious Employee Protection Act (“CEPA”) (NJSA 34:19-1 et. seq.) protects employees from retaliation by their employer if the employee discloses or threatens to disclose to a supervisor or a public body some violation of law or other fraudulent or criminal activity being committed by the Company.   The employee is also protected if it testifies against the Company before a public body on the company’s violation of some rule or regulation.  Above all, the employee is also protected if they refuse to participate in some activity that they reasonably and objectively believe violates the law or regulation or is against a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.  New Jersey is one of the few states in the country that offers such comprehensive employee protections against a company’s retaliatory actions.The New Jersey Supreme Court has held that your belief that the company is violating another jurisdiction’s law may also be a valid claim under CEPA.  See Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1997)  In this age of multi-national corporations, you may be assigned to a international project and hence, would have an actionable claim based on violation of that nation’s laws as well.   Our courts have also required that the employee have an “objectively reasonable belief” that at the time that he objects, the company’s action violates some law or public policy.If you believe that you have been retaliated against or are about to be retaliated against because of your objection to the company’s illegal or fraudulent action, you should consider the following:
  1. Make sure you are right about your objection; i.e. take the time to do a little research to confirm that the grounds of your objection are actually correct or that your “objectively reasonable belief” is well founded;
  2. Document your objections and the grounds for same; in all likelihood you may be able to clear up the issue by providing the information rather than just objecting without basis; and
  3. If the company continues on its course of conduct, gather proof as your termination may be imminent; and
  4. Call an attorney - you need one now.
 

5 Things to Consider When Dealing with an Abusive Supervisor

PART I: Pre-Termination Counseling - Targeted AbuseTargeted Work AbuseEver get that feeling that you are being targeted at work, that your supervisor appears to be picking on you more than others, or that suddenly, nothing you do seems right?  Don’t ignore your instinct that something may be wrong.  You don’t have to fall in a protected category (age, race, gender, national origin etc.) to be suffering workplace harassment.  Just because your claims may not be actionable in court doesn’t mean that you shouldn’t try and protect yourself against an abusive employer.Here are 5 things to consider when dealing with an abusive supervisor:
  1. Stay calm; nothing fuels an already volatile situation more than getting upset.
  2. Ask for specifics and explanations of what the perceived deficiencies in your work are to better understand what your supervisor is upset about.  If that work product was a result of someone else’s work, explain that.
  3. Document your discussion with your supervisor with a confirming email explaining how the perceived deficiency was not your fault.
  4. If the situation continues to escalate, seek guidance and help from HR.  Document your discussions with your manager or HR either in an email, a journal or a memo made very soon after the conversation; make sure to date the document.
  5. For yourself, document instances where others in the department had the same or worse perceived deficiency and were not reprimanded by this supervisor, i.e. received some sort of preferential treatment while you continued to be treated badly.  Make sure you include details and dates and witnesses in your journaling.
 

How do you deal with the office bully?

PART II: Pre-Termination counseling - Work Place Bulliesdealing with the office bullyWhile none of the states in the union currently have laws preventing work place bullying, the trend is likely to spread from our European cousins.  Currently, numerous employees are subject to harsh and abusive treatment in the work place, and because of the high employment rates, have no choice but to endure the stress and toxicity of this hostile work environment.  While some larger companies might include anti-bullying policies in their employee handbook, there is no formal legislation which prohibits same or imposes any liability upon the employer for bullying or harassment which is not related to a protected characteristic.  Said simply, the equal opportunity bully gets a free pass unless his own company choses to take action.  In many instances, the company won’t act to remove that bully from the work place leaving the victims without any recourse other than to leave the job to get away from the abuse.So, how do you deal with the office bully?
  1. You can’t do it alone; get HR to help and make sure you document and describe clearly the instances of bullying and all of your conversations with HR;
  2. Seek out someone in upper management to try and help you and make sure you know the company policy on bullying so that you can follow its procedure;
  3. Identify and document witnesses to the bullying;
  4. If the situation becomes intolerable and you are forced to seek medical care or take leave because of the bullying, make sure you let HR know about the reasons for your leave and medical care; and
  5. Consider looking for another job; after all, no job is worth risking your health and sanity, and until we have laws that protect you in this situation and impose an affirmative obligation on the company to stop the bullying, you have to protect yourself.

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