The District of New Jersey ruled recently that filing a workers’ compensation claim does not qualify as protected activity sufficient to trigger protection from the Conscientious Employee Protection Act (“CEPA”) or the New Jersey Law Against Discrimination (“LAD”).
Tammy Davis worked as a cashier at Supervalu, Inc. d/b/a Acme Markets (“Acme”) in Burlington, New Jersey, for over 20 years. In early 2011, she filed a workers’ compensation claim against Acme. About a year later, Acme terminated Davis’ employment for improperly recording sales.
In December 2012, Davis filed suit in the Superior Court of New Jersey, alleging, among other things, that Acme terminated her employment in retaliation for filing a workers’ compensation claim in violation of CEPA and the LAD. Acme removed the case to the United States District Court for the District of New Jersey and then moved to dismiss those claims.
The court granted Acme’s motion to dismiss Davis’ claims for retaliation pursuant to CEPA and the LAD. As to CEPA, it explained that the statute’s protections only apply to an employee who engages in “whistleblowing,” which requires a complaint or objection that the employer’s conduct is unlawful or otherwise incompatible with public policy. Filing a claim for workers’ compensation is not “whistleblowing” and therefore does not trigger the protections of CEPA.
Similarly, to establish a retaliation claim under the LAD, an employee must engage in “protected activity” under that statute. Protected activity under the LAD means opposing unlawful discrimination with respect to terms and conditions of employment because of various protected characteristics, such as race, religion, age, sex, disability, etc. Filing a workers’ compensation claim does not qualify as protected activity under the LAD.
While the decision is a welcome one for employers, it is important to note that discharging an employee for filing a workers’ compensation claim is unlawful, and a cause of action does exists for such an allegation; just not under CEPA or the LAD.