Until this year, there had been some question of whether an employee could recover front and back pay in an employment case without proving he had been actually or constructively discharged by the employer. In a recent opinion by the New Jersey Supreme Court interpreting the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 to -8 (CEPA), a former employee of DuPont Chambers Works who had sued the company as a whistleblower and took retirement during the pendency of his lawsuit was permitted to recover substantial front and back pay without having to satisfy the rigorous test for constructive discharge that has historically been required in such cases.
Writing for the majority of the Court in this 4-2 decision (Justice Rivera-Soto abstained), Justice Albin rejected the notion that an employee in a CEPA case must prove actual or constructive discharge to recover front or back pay. Donelson v. DuPont Chambers Works, 206 N.J. 243, 263 (2011). In the process, the decision has cast serious doubt on whether such proofs will be necessary in seeking economic damages in a Law Against Discrimination case as well.
