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As plaintiffs’ employment lawyers and employment defense lawyers alike will tell you, recent years have seen an explosion in whistleblower suits under the New Jersey Conscientious Employee Protection Act. As this periodical reported on Sept. 20, the number of whistleblower suits has more than doubled since 2001. Clearly, there does not seem to be any lack of knowledge by employees or their attorneys about the protections available under CEPA. Nonetheless, in a little recognized development, the New Jersey Legislature recently amended CEPA to require employers to take affirmative steps to make employees even more aware of their rights as potential whistleblowers, a move undoubtedly destined to lead to a further explosion of suits in this area. As amended, the new law requires employers to do more than just display notices of CEPA protections to employees, as was previously the case. Under P.L. 1986, c.105, they now must “annually distribute to all employees, written or electronic notices of these rights.” The employers are responsible to make sure the notices are in English, Spanish, and (at the employer’s discretion) any other language spoken by a majority of the employees. The amended law also makes the commissioner of labor responsible to provide, for a fee, the full text of such a notice to all employers. The law imposes these obligations and expenses on every employer in the state who has 10 or more employees. Significantly, any employee who has suffered some adverse employment action undoubtedly will be able at least to get that claim to a jury. This could not be better illustrated than by the recent Supreme Court decision, Hernandez v. Montville Twp. Board of Education, 179 N.J. 81 (2004). In that case, a school custodian who had been terminated filed suit under CEPA alleging that, during the course of his employment, he had complained about a clogged toilet and a missing light in an exit sign, thereby entitling him to the protection of the law designed to protect whistleblowers who focused on issues of public significance. A 4-3 Supreme Court ruled that clogged toilets and unlit exit signs could pose safety or health hazards, thereby asserting that this was, indeed, a matter that should get to a jury. As the dissent pointed out, ironically, it was Hernandez’s responsibility to clean the very toilets about which he complained! Nonetheless, he was allowed to take refuge under CEPA and to pursue a claim alleging that his complaints led to his termination. It is not clear why the Legislature felt compelled to make employers take affirmative steps to inform employees further about the availability of a statute that is now clearly in widespread use — particularly at the employer’s expense. It is also not clear why this amended law was to take effect immediately upon its signing on Sept. 14, while, as a call to its offices showed, the Department of Labor has yet to make available to employers the text of the requisite notice. Thus, as it stands now, employers have the paradoxical obligation to have their attorneys prepare notices about employees’ rights under CEPA to distribute to those employees. Happily, it is not expected that employers’ attorneys will actually have to meet with the employees to make sure they understand the ease with which they can bring a CEPA claim against the company for which they work. Perhaps that will find its way into the next amendment to this law. Gagliardi is a partner with Porzio, Bromberg & Newman in Morristown , N.J., and chairman of its Labor and Employment group. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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