The following article is written by Thomas J. Cotton and was originally published in the December Construction Law Section Newsletter, which is available to members of the Construction Law Section. Cotton is an associate with Schenck, Price, Smith & King, LLP. He is a commercial litigator who represents clients in the construction, entertainment, and technology industries. His practice also includes employment litigation, professional liability, and high-stakes appeals. To learn more about joining a section of the NJSBA, contact us at [email protected].Whistleblower lawsuits, relative to other aspects of the legal profession, make for easy conversation at dinner parties. The practitioner either represents the courageous employee shining a light on a dangerous workplace, or the dutiful employer that is being shaken down by a sanctimonious worker. The good and evil labels are interchangeable, depending on who is telling the story.
Actually litigating a whistleblower lawsuit is more difficult. The issues are fact-specific. The most critical communications are often two-party conversations without witnesses. The law seems to issue guidance so broad that unpredictability is the only certainty.
Defending a whistleblower lawsuit in the construction industry comes with its own host of difficulties. Work is not consistently available, thus leading to layoffs that entrepreneurial plaintiffs are quick to deem terminations. Workplace safety is also a genuine concern, thus opening a door for whistleblowers to voice objections.
This article seeks to provide strategies for defending whistleblower lawsuits in the construction industry by examining the playbooks used by attorneys for both courageous employees and dutiful employers. This article is not a comprehensive roadmap. Entire books can be, and have been, written about whistleblower litigation. This article does, however, highlight the more universal strategies.
Background on Whistleblower Law in New Jersey There are two common sources for whistleblower lawsuits in New Jersey. The first is statutory and the second is a product of common law. A plaintiff cannot have his or her cake and eat it, too. A plaintiff can raise the statutory claim or the common law claim, not both.
1 The first source is the New Jersey Conscientious Employee Protection Act (CEPA). A CEPA plaintiff must prove the following elements: 1) reasonable belief the employer was violating a law, rule, regulation, or clear mandate of public policy; 2) whistleblowing activity;
3) adverse employment action; and 4) causal connection between whistleblowing activity and adverse employment action.
2 The second source is Pierce v. Ortho Pharmaceutical Corp.
3 A Pierce plaintiff must prove termination in violation of public policy.
4 Termination for notifying regulatory agencies, such as the Occupational Safety and Health Administration (OSHA), of employer violations can give rise to a Pierce claim.
5 The differences among CEPA and Pierce are important. A CEPA claim must be filed within one year,
6 while a Pierce claim must be filed within two years.
7 CEPA allows for an award of attorneys’ fees to the prevailing party,
8 while a Pierce claim is subject to the American Rule. CEPA claims also allow for a civil fine.
9 The Defensive Coordinator’s Playbook In defending the diligent construction company against a rapacious construction worker, the client expects the practitioner to annihilate every aspect of the plaintiff’s allegations. There are three strategies worth considering, each of which (or possibly all) are commonly available when litigating in the construction industry.
First, one should present the cessation of the plaintiff’s employment as a layoff instead of a termination—provided the facts allow for such a presentation. A whistleblower is required to show a causal connection between the objections and the change in employment conditions. That requirement can be satisfied if the supervisor emails, “You’re fired because you complained to OSHA.” That requirement is more difficult to satisfy if, as happens in the construction industry, the whistleblower’s last day on-site coincides with the crew’s last day.
Second, one should secure testimony and documents painting the plaintiff as a contrarian know-it-all. Employees who incessantly object to workplace conditions, solely by referencing their own opinions or experience, are not entitled to remain employees. An employee who complained about workplace safety also likely complained about scheduling, payroll, and suppliers. A whistleblower’s claims will not survive dismissal if genuine objections are lost in a forest of trivial grievances.
10 Third, one should investigate the plaintiff’s employment record for the periods prior to and after the relationship with the client. If pre-employment misconduct (e.g., misrepresenting qualifications) is identified during discovery, then the employer can use this “after-acquired evidence” to limit potential damages.
11 Post-employment malfeasance can likewise limit or kill a lawsuit if presented as a failure to mitigate damages. The opportunities within the plaintiff’s pre- and post-employment record arise frequently in the construction industry, particularly where employees are hired through unions and work for many different firms over just a few years.
The Offensive Coordinator’s Playbook Defending against any claim requires foresight. The defense has a decisive advantage if it knows what plays the offense will call. Below are three common tactics to expect from attorneys prosecuting whistleblower claims in the construction industry.
First, expect OSHA will get involved no matter the litigation’s stage. Once the OSHA complaint is made, any events that follow are more easily painted as retaliatory. No one has the power to go back in time and advise a client to write to OSHA at the earliest opportunity. But a post-layoff OSHA complaint can still be actionable if, as is the case in the construction industry, layoffs and re-hiring follow the tides of available work. An OSHA investigation also presents the chance an authoritative body will identify safety violations that lend support to alleged objections.
Second, expect plaintiffs will attempt to control the credibility game. This strategy is important in all whistleblower cases generally, because the inevitable dispositive motion can be defeated if the case turns on credibility.
12 This strategy is also important in construction cases specifically, because communications at a construction site are often face-to-face instead of written.
Third, expect plaintiffs will be counseled to remain ready and willing to work. This requires more than firing-and-forgetting job applications. For a construction worker, this typically requires maintaining good standing with the union. Plaintiffs will need to complete seemingly extraneous paperwork and routinely contact the hiring agent. Any failure to maintain ‘occupational readiness’ could be construed as a failure to mitigate damages.
Conclusion Hopefully, this article will be of use to fellow defense attorneys in whistleblower lawsuits. At the very least, the strategies will move one’s dinner party conversations away from cartoonish characterizations and toward the nuanced elements of a whistleblower claim. All party guests are likely to be thrilled by those topics!
Endnotes 1. N.J.S.A. 34:19-8. 2. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). 3. 84 N.J. 58 (1980). 4. House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 53-54 (App. Div.), certif. denied, 117 N.J. 154 (1989). 5. LePore v. Nat’l Tool & Mfg. Co., 115 N.J. 226, 227, cert. denied, 493 U.S. 954 (1989). 6. N.J.S.A. 34:19-5. 7. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 256 (App. Div. 1998). 8. N.J.S.A. 34:19-5 and -6. 9. N.J.S.A. 34:19-5. 10. See Blackburn v. UPS, 3 F. Supp. 2d 504, 517 (D.N.J. 1998). 11. Cicchetti v. Morris Cnty. Sheriff’s Office, 194 N.J. 563, 590 (2008). 12. Akhtar v. JDN Props. at Florham Park, LLC, 439 N.J. Super. 391, 399 (App. Div.), certif. denied, 221 N.J. 566 (2015).