Lateral Transfer May Constitute Adverse Employment Action For Whistleblower Retaliation Under New Jersey Conscientious Employee Protection Act
In general, to establish a whistleblower retaliation claim under the New Jersey Conscientious Employee Protection Act (“CEPA”), an employee must suffer an “adverse employment action.” The most typical examples of adverse employment actions are employment terminations or demotions.
In Jeffrey Scozzafava v. Somerset County Prosecutor’s Office (Docket No. A-2228-16T1 May 14, 2018), the Appellate Division took an expansive view of the term “adverse employment action” to include a lateral transfer. Plaintiff, a detective with the Somerset County Prosecutor’s Office who had extensive experience in the forensic field, alleged that his transfer from the Office’s forensic unit to the Office’s fugitive squad was “in retaliation for whistle-blowing conduct in lodging complaints regarding deficient and improper evidence collection and casework by the forensic unit.” Significantly, the transfer was a lateral transfer. Indeed, Plaintiff maintained his position and rank, with full pay and benefits. Therefore, the trial court dismissed the lawsuit, finding that Plaintiff did not suffer an adverse employment action under CEPA.
The Appellate Division, however, reversed the trial court’s decision and remanded the matter for further proceedings. Specifically, the Appellate Division found that retaliation under CEPA not only includes “discharge, suspension or demotion but also other adverse employment action taken against an employee in the terms and conditions of employment.” The Appellate Division further determined that New Jersey courts have interpreted the “terms and conditions of employment” as “those matters which are the essence of the employment relationship,” including “length of the workday; increase or decrease of salaries, hours, and fringe benefits; physical arrangements and facilities; and promotional procedures.” Accordingly, here, the Appellate Division found that, given Plaintiff’s extensive experience as a forensic detective, the transfer was “objectively demeaning” and would not allow him to continue to develop his expertise in the forensic field. Therefore, the Appellate Division held that Plaintiff alleged “sufficient facts, when viewed in the proper light, to prove an adverse employment action.”
This decision represents a significant victory for employees given that it further expands whistleblower protection under CEPA. As such, it important that New Jersey employees understand the expansion of their rights in the workplace under CEPA.