The State Legislature partially codified the Pierce claim when it passed the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. in 1986. Barratt v. Cushman & Wakefield of New Jersey, Inc., 144 N.J. 120, 126-27 (1996); Young v. Schering Corp., 141 N.J. 16, 26-27 (1996). While the Legislature codified the common law retaliation Pierce claims, it did not abolish common law claims. Id.
However, CEPA has a provision that requires that a plaintiff cannot pursue another retaliation claim if that person is pursuing a CEPA action. N.J.S.A. 34:19-8. However, both CEPA and Pierce actions may be pled in the Complaint as long as one cause of action is dropped before trial.
The Appellate Division directly addressed this issue in Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, 440-41 (N.J. Super. 2003), rev’d on other grounds, 179 N.J. 43 (2004). In Maw, the defendant had also tried to dismiss the Plaintiff’s Pierce claim, making the same arguments advanced by Orkin. The Appellate Division held that it is inappropriate to dismiss the Pierce claim until the Plaintiff has had an opportunity to take discovery, The Court explained:
Common-law claims of wrongful discharge in violation of public policy, which merely duplicate a CEPA claim, are routinely dismissed under CEPA’s exclusivity provision, albeit, generally at later stages of the litigation. Falco v. Cmty. Med. Ctr., 296 N.J.Super. 298, 304, 318, (App.Div.1997), certif. denied, 153 N.J. 405, 709 A.2d 798 (1998); Catalane v. Gilian Instrument Corp., 271 N.J.Super. 476, 492-93 (App.Div.), certif. denied, 136 N.J. 298, 642 A.2d 1006 (1994); Flaherty v. The Enclave, 255 N.J.Super. 407, 413, 605 A.2d 301 (Law Div.1992). Indeed, the Supreme Court has held that this was precisely the Legislature’s intent in enacting CEPA’s exclusivity provision. Young, supra, 141 N.J. at 27, (“we are persuaded that the Legislature intended that the N.J.S.A. 34:19-8 waiver prevent an employee from pursuing both statutory and common-law retaliatory discharge causes of action” and “curtail … cumulative remedial actions”).
Although none of the cases cited specifically address at what point the election must be made, Young is instructive. The Court found the election needed to be made “once a CEPA claim is ‘instituted.’ ” Id. at 29. However, in discussing the meaning of “institution of an action,” the Court noted that “[t]he meaning of ‘institution of an action’ could conceivably contemplate an election of remedies with restrictions in which the election is not considered to have been made until discovery is complete or the time of a pretrial conference contemplated by Rule 4:25-1. Another question is whether the statutory waiver is applicable if the CEPA claim is withdrawn or otherwise concluded prior to judgment on the merits.” Id. at 32. We take this language to mean that before electing remedies, a plaintiff should have an opportunity to complete discovery. Only after gaining access to all of the facts, will a plaintiff be in a position to make a knowing and meaningful election.
Maw, 359 N.J. Super. at 441. (Emphasis added)
Justices Zazzali and Long of the New Jersey Supreme Court also gave guidance on this issue in their thoughtfully reasoned dissent. Although a plaintiff who pursues a CEPA claim must forego a common-law claim, it would be unjust to force a party into making that decision at the pleading stage of the proceedings before a court has determined whether either action may lie. Maw, 139 N.J. at 450, dissent at FN1.
2. Differences between Pierce and CEPA claims
o The statute of limitations for CEPA is one year, N.J.S.A. 34:19-5. The statute of limitations for Pierce claims is two years for tort claims. Montells v. Haynes, 133 N.J. 282 (1993) (holding that common law tort claims are governed by two-year statute). The statute of limitations for Pierce claims is six years for contract claims. Pierce, 84 N.J. at 72.
o Pierce claims only pertain to terminations. CEPA more broadly protects “any retaliatory action.” N.J.S.A. 34:19-3.
o Because Pierce claims are more congruous with the common law retaliation claims of other states, Pierce claims will be recognized in some situations involving interstate claims, whereas CEPA claims may not. See e.g. Ballinger v. Delaware River Port Authority, 172 N.J. 586 (2002).
o Attorneys fees are available under CEPA (NJSA 34:19-5e), but are not available under Pierce unless the claim is brought for retaliatory termination taken under color of law (Civil Rights Act. NJSA 10:6-2.).
o The necessity of prior complaints.
To pursue a CEPA claim, there is a statutory requirement that before complaining to an outside agency, the employee must first make an internal complaint, unless the employee is reasonably certain that one of more supervisors already know about the problem, or the employee reasonably fears physical harm or that the situation is emergent. N.J.S.A. 34:19-4. There is no requirement of a complaint to an outside agency on part (c) claims, see supra Abbamont v. Piscataway Twp. Bd. of Ed., 136 N.J. 28 (1994); Higgins v. Pascack Valley Hosp., 158 NJ 404 (1999); Roach v. TRW, 164 N.J. 598 (2000); Gerard v. Camden Co. Health Services, 348 N.J. Super. 516 (App. Div. 2002), certif. denied 174 N.J. 40 (2002).
To pursue a Pierce claim, there is some confusion as to whether there is a requirement for a complaint to an outside agency. The confusion has arisen as a result of incorrect dictum contained in Young v. Schering Corp., 141 N.J. 16, 27 (1995). The Appellate Division in Young had held that an outside complaint is necessary, 275 N.J. Super. 221, 234-35 (App. Div. 1994), and relied upon a partial sentence from House v. Carter-Wallace, Inc., 232 N.J.Super. 42, 49, 556 A.2d 353 (App.Div.), certif. denied, 117 N.J. 154, 564 A.2d 874 (1989). The complete sentence from House states:
However, no New Jersey case has recognized a claim for wrongful discharge based solely upon an employee’s internal complaints about a corporate decision, where the employee has failed to bring the alleged violation of public policy to any governmental or other outside authority or to take other effective action in opposition to the policy. (Emphasis added).
Cases holding that a Pierce claim exists in the absence of complaint to outside agencies include Carracchio v. Aldan Leeds, Inc., 223 N.J. Super. 435 (App. Div. 1988);- Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 (1992); Velantzas v. Colgate-Palmolive – Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. 189 (1988).
On February 6, 2006, Federal Judge Greenaway, in Badrinauth v. Metlife Corp., Slip Copy, 2006 WL 288098 (D.N.J. 2006), rejected the defendant’s argument that NJ has, in effect, a per se rule requiring that an actual report to an external authority is a predicate to maintaining an action for wrongful termination under Pierce. The Appellate Division is currently addressing this issue head on in the case of Tartaglia v. PaineWebber, A-4412-03-T3.
o Pierce claims have been recognized in situations where a termination is in violation of public policy, even where there is no complaint or refusal to participate in unlawful activities.
o Carracchio v. Aldan Leeds, Inc., 223 N.J. Super. 435 (App. Div. 1988) – employee was is terminated for suffering a worker’s compensation injury may bring Pierce claim, even when employer, and not employee, files claim with their insurance company.
o Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 (1992) – employee may state a Pierce claim if terminated for refusing a random drug test, where the employer does not have a legitimate reason to require such a test.
o Velantzas v. Colgate-Palmolive – Velantzas v. Colgate-Palmolive Co. Inc., 109 N.J. 189 (1988) – employee states a Pierce claim when terminated for requesting to see personnel file for purpose of establishing discrimination.
o Epperson v. Walmart Stores, 373 N.J. Super. 522, 541 (App. Div. 2004) – employee may state Pierce claim where employee is wrongfully terminated and maliciously prosecuted.
o It is possible to claim that an employee who is discharged for no reason and then must defend a malicious criminal proceeding instituted by her employer ma state a Pierce claim. See Giudice v. Drew Chem. Corp., 210 N.J.Super. 32, 36, 509 A.2d 200 (App.Div.), certif. denied, 104 N.J. 465, 517 A.2d 448, 449 (1986), but not have a cause of action when “merely” victimized by similar conduct. (The Pierce claim was dismissed on “waiver” grounds, as there was also a CEPA and malicious prosecution claim which subsumed the Pierce claim.).
3. No Waiver of claims requiring different elements
The waiver or exclusivity provision of CEPA only extends to claims that require a finding of retaliatory conduct that is actionable under CEPA. The waiver exception does not apply to those causes of action that are substantially independent of the CEPA claim. Young v. Schering Corp., 141 N.J. 16, 29 (1996).
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