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In April 2005, the New Jersey Commissioner of Labor issued a new version of the notice that employers must post to advise employees of their rights and obligations under the Conscientious Employee Protection Act (also known as the Whistleblower Law). Employers should take note that there are special requirements for the CEPA notice that go above and beyond merely posting it on a bulletin board along with all the other labor and employment law posters. Specifically, it must be posted in Spanish, as well as English; the employer must designate a contact person who can provide more information and receive written notice of alleged improprieties; and, if the employer has more than ten employees, the notice must be distributed annually to all employees in written or electronic form. The new notice is a revised version of a poster that was issued by the Commissioner in November 2004, to comply with an amendment to �7 of CEPA. Employers should make sure they are in compliance with the amended law by: (1) verifying that the April 2005 version of the notice is posted in both English and Spanish; (2) implementing procedures for the annual distribution of the notice; and (3) listing one or more contact persons in the notice to answer questions or receive notice of alleged improper conduct. English and Spanish versions of the new CEPA notice are available directly from the New Jersey Department of Labor or on its Web site. As discussed below, employers should consider carefully their options for handling annual distribution of the notice and designating contact persons. Further, employers may wish to consider modifying the poster to explicitly state that the contact person has been designated to receive written notice of improper activities, prior to any disclosure to a public body. ANNUAL DISTRIBUTION Section 7, as amended, requires employers with 10 or more employees to annually distribute a notice of CEPA’s protections, obligations and procedures, by either written or electronic means. The amendment does not specify whether employees outside of New Jersey are counted toward the 10 employee threshold for the distribution requirement. It is notable, however, that the regulations under the New Jersey Family Leave Act, which covers employers with 50 or more employees, state that all employees, whether located in or outside of New Jersey, must be counted to determine NJFLA coverage. Thus, if the NJFLA requirement is any indication, employers should count employees both within and outside of New Jersey in calculating the number of employees that trigger the obligation to distribute the CEPA notice. Employers with fewer than 10 employees do not have to distribute the notice, but must still post it in the workplace. The Commissioner’s office has informally advised that the initial distribution of the notice may be made at any time within the one-year period following Sept. 14, 2004 (the date of the amendment). Employers may wish to choose an existing annual event as the occasion for distribution of the CEPA notice to ensure that future distributions occur on a consistent basis. For instance, some employers already have systems in place for annual distribution of other materials, such as antiharassment policies or codes of ethics. If so, the CEPA notice could be added to that distribution process. Other employers may want to use a particular occasion, such as annual performance evaluations, as a time when the employee is provided with the annual CEPA notice. If an employer does not have any existing appropriate annual event to which distribution of the CEPA notice can be linked, it should develop a failsafe tickler system to serve as a reminder each year for doing so. The choice between written or electronic distribution offers some flexibility to decide which method works best for the workforce and options for maintaining records to confirm distribution and receipt of the CEPA notice. Such records are not required by the statute, but may be useful to demonstrate compliance generally, or that a particular employee received the notice. An electronic method offers ease of distribution, particularly to remote locations. An employer using electronic distribution should retain the distribution list of everyone to whom the notice was sent. The employer may also wish to track receipt with an electronic confirmation that is triggered when the employee opens the e-mail. Electronic distribution may be accomplished by inserting the text of the notice directly into the e-mail message, or as an attachment to the e-mail. If the latter method is used, the e-mail message accompanying the attached notice should describe the nature of the attachment and emphasize the importance of reading it. Employers also should consider requiring employees to electronically acknowledge receipt of the notice. Written distribution will be necessary, of course, for employees who do not have workplace e-mail. Some employers may prefer written distribution — particularly if they want to have a signed acknowledgement of receipt to place in each employee’s personnel file. DESIGNATING CONTACT PERSONS Section 7, as amended, states that the notice of rights “shall include the name of the person or persons the employer has designated to receive written notifications pursuant to section 4 of [the] Act.” Section 4 states that the protections of CEPA will not apply to an employee who makes a disclosure to a public body, unless the employee has first brought the supposed improper activity, policy or practice to the attention of a supervisor by means of a written notice and has afforded the employer a reasonable opportunity to correct the problem. That requirement, however, does not apply if the employee is reasonably certain that one or more supervisors are aware of the activity, policy or practice, or if there is an emergency situation and the employee reasonably fears physical harm if disclosure is made. Thus, �7 gives employers an important right. Now, they are able to designate specific individuals to receive the written notice that the statute requires prior to disclosure to a public body. Indeed, the amendment requires employers to designate someone for that purpose. The DOL’s new notice, however, does not directly address this requirement. Paragraph “2″ of the new notice generally explains an employee’s written notice obligations, and the notice also has a space for the employer to fill in the name and contact information for an individual “designated to answer your questions or provide information regarding your rights and responsibilities under this act.” The notice, however, does not indicate that this individual is also designated to receive the requisite written notice prior to disclosure to a public body. Therefore, employers should consider adding a statement in the notice that the contact person is also the individual to whom the written notification described in paragraph 2 of the notice should be given. By doing so, employers will help assure that such notifications are directed to an individual who will act promptly and enable the employer to correct a problem, before a public body becomes involved, and not just any supervisor in the company. Choosing an appropriate and effective contact person is integral to an employer’s compliance with the statute. In making that designation, an employer should consider factors such as an individual’s position, expertise, location, temperament and reputation in the workplace. The purpose and intent of CEPA, and particularly of the new notice requirements, may be lost if the individual designated on the notice is not someone the employees would feel comfortable approaching with their concerns. Consequently, an employer should carefully consider its options before making the designation. Further, although the notice contains space for only one contact person to be designated, �7 of CEPA specifically states that the employer may designate more than one individual. An employer may find it appropriate to do so, or even identify different individuals in different locations. A local contact person may be easily accessible, but could be too close to a particular situation. Also, an employee may not be comfortable contacting someone at the local level about an issue at that location. Thus, employers should consider giving employees at least the option of contacting someone outside of their immediate workplace. Some employers may want to designate individuals who are already listed in a business code of ethics, antiharassment policy or a whistleblower policy as persons to whom reports of alleged improprieties may be made. An employer with a significant number of non-English speaking employees also should consider designating at least one individual who speaks a foreign language used by many or all of the company’s employees. Individuals designated as contact persons in the CEPA notice should be trained in their responsibilities, so that they will be prepared to respond to inquiries and to take prompt and appropriate action should they receive any reports of alleged wrongdoing. For example, for employers subject to the Sarbanes-Oxley Act, the contact person should be aware of the kind of alleged improprieties that must be reported to the Audit Committee established to comply with Sarbanes-Oxley. Prompt, knowledgeable and effective responses to questions and reports of any suspected improper activity can be crucial to an employer’s operations and its ability to avoid costly and time-consuming litigation under CEPA. Edward Cerasia is a partner and Wanda L. Ellert is a senior counsel in the labor and employment law department of Proskauer Rose in Newark. Christie Del Rey-Cone, an associate at Proskauer, assisted with the preparation of this article.

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