Articles Tagged with New Jersey Whistleblower Attorneys

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workplace-615375__340-300x200The United States Court of Appeals for the Third Circuit, which hears appeals from decisions in the federal courts of New Jersey, Pennsylvania and Delaware, recently issued a major decision interpreting the scope of coverage of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”). As the Third Circuit explained,

[The] shift from medical emergency management to primary care treatment has resulted in a “grave financial challenge” for hospital administrators. Many of them responded to this economic pressure by engaging in a practice known as “patient dumping.” That term refers to the practice of refusing to offer emergency room treatment to indigent patients who lack medical insurance, or transferring them to other medical facilities before their emergency medical condition has been stabilized. Congress attempted to address this situation by enacting EMTALA. EMTALA imposes certain mandates on hospitals regardless of whether a patient who presents to an emergency room has the ability to pay for treatment.

EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exists. “[I]f the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to [discharge or] transfer him [or her] elsewhere.”[ A hospital that either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA.

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whistle-2496555__340-300x200In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge.  In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”)  https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.

In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action).  However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action.  The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.

The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate.  (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.)  In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation.  In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation.   The ADEA, Title VII, and the FCA all contain that same language.

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racism-2733840__340-300x300When an employee is being harassed or disciplined in his employment as a result of discrimination or retaliation for the employee’s objections to illegal conduct, there are multiple laws which may provide relief to the employee.  These include, for instance, New Jersey’s Law Against Discrimination (the “LAD”) and New Jersey’s Conscientious Employee Protection Act (“CEPA,” also known as the “Whistleblower Law.”)

Both Acts may allow the employee to bring a lawsuit against the employer for a wrongful termination or other adverse employment action (i.e. demotion), as well as harassment.  When an employer is wrongfully disciplining or retaliating against an employee, it is important for the employee to preserve and maintain records of the wrongful conduct of the employer in order to support her claim that she suffered a wrongful employment action.  However, employees need to be cautious in what records they preserve and how they preserve those records.

In the case of Quinlan v. Curtiss Wright Corporation  Joyce Quinlan believed that as a result of gender discrimination, her employer had passed her over for a promotion. She then began copying confidential human resources files which she believed supported her claim that she was being discriminated against and she produced the copies in the course of discovery during litigation.  The employer later fired her for “taking” the records (while litigation was ongoing).  Quinlan then amended her complaint to include the claim that she was retaliated against for essentially participating in the LAD suit against the employer.  The Law Against Discrimination  not only prohibits employment discrimination on the basis of a protected classification (gender, nationality, religion, race, etc.), but it also prohibits retaliation against a person for opposing discrimination, filing a discrimination complaint, or participating in a LAD proceeding.

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strategy-1710763__340-300x160One of the most difficult issues for New Jersey employment attorneys is when federal law preempts New Jersey employment law.  One of the most thorny areas is the intersection of the Federal Labor Management Relations Act, which governs the interpretation and application of collective bargaining agreements (union contracts) in the private sector.  Fortunately, New Jersey’s Appellate Division has recently issued an important opinion clarifying this complex area in the context of disability discrimination and retaliation by an employer against an employee for filing a workers compensation claim.

Background

Brian Hejda was a truck driver for Bell Container Corp., and a member of Teamsters Local Union 813.  He suffered a workplace knee injury.  He had various restrictions on what he could do at work, and he was medically limited to light duty.  He filed a workers compensation claim; Bell denied that he sustained a disabling injury.  Eventually Hejda was asymptomatic and able to return to full duty, although his doctors advised that he would eventually need arthroscopic surgery to repair the damage.  Hejda reported to work for a week but was not given much to do.  When he returned the following week, he was told to leave.

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police-1714956__340-300x200New Jersey’s Conscientious Employee Protection Act (“CEPA”) provides a remedy for employees who are wrongfully terminated in retaliation for objecting to conduct which is believed to be illegal.  This Act is often referred to as the New Jersey “whistleblower law.”  In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country.  CEPA is a relatively new law, enacted n 1986, and thus has been the subject of much debate, misunderstanding, and misapplication.

CEPA provides wrongfully terminated or retaliated against employees with an avenue to seek redress.  An employee is protected under CEPA if she disclosed, objected to, or refused to participate in an act, policy, or practice of the employer which the employee reasonably believed violated a law, regulation, or public policy.  If the employee is then fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal, that employee may have a claim under CEPA.

In the recent case of Fraternal Order of Police, Lodge 1 v. City of Camden, police officers brought an action against the City claiming (among other things) retaliation in violation of CEPA for the officers’ objections to the City’s policies regarding police-civilian interactions, based upon the belief that the policy violated the anti-quota law.