The New Jersey Superior Court – Appellate Division recently held that summary judgment was inappropriate on a former employee’s CEPA claim where the employee claimed he was subjected to a hostile work environment and had his hours reduced after filing a class action lawsuit.
Howard Flecker filed a class action complaint alleging a violation of Wage and Hour Law. Flecker claimed that employees were only paid overtime if they worked over forty-eight hours per week in conflict with federal law requiring overtime for hours in excess of forty per week.
Several days later, a company executive circulated a memorandum notifying employees about the lawsuit, identifying Mr. Flecker as the filing party, and informing employees that because of the lawsuit, union employees would no longer be scheduled for more than forty hours per week. Plaintiff thereafter alleged he was subjected to a hostile work environment, his hours were reduced, and he resigned because of the stressful work environment. He amended his complaint to add a claim under the Conscientious Employee Protection Act (CEPA).
The trial court granted summary judgment for the defendant, finding that neither the memorandum nor the reduction of plaintiff’s hours was evidence of an adverse employment action under CEPA.
The Appellate Division reversed summary judgment, finding there was a question of fact as to whether plaintiff was subjected to adverse employment action. The Appellate Division stated that “a jury could reasonably find that defendants retaliated against plaintiff by turning his coworkers against him and that those repeated confrontations stemmed directly from the . . . memorandum, ultimately causing his resignation.” The Appellate Division also noted that a reduction in hours could be considered a retaliatory action.
Employers should take note that the Appellate Division, in this case, took an expansive view of adverse actions under CEPA beyond mere suspension, failure to promote, or termination. This case also reminds employers to carefully consider all actions taken with respect to a current employee who has filed a lawsuit against the company.