(N.J.S.A. 34:19-1 et seq.) (6/91)
Under the law, an employee is protected from retaliation in his/her employment if he/she:
[CHOOSE APPROPRIATE OPTION:]
(1) Disclosed, or threatened to disclose, to a supervisor or public body an activity, policy or practice of defendant, or of another employer with which defendant has a business relationship, that plaintiff reasonably believed to be in violation of a law or rule or regulation promulgated pursuant to law,
[or] (2) Provided information or testimony to a public body conducting an investigation, hearing or inquiry into any violation of a law, or rule or regulation promulgated pursuant to law, by defendant or by another employer with which defendant has a business relationship,
[or] (3) Objected to or refused to participate in any activity, policy or practice which plaintiff reasonably believed: (a) is in violation of a law or a rule or regulation promulgated pursuant to law;
(b) is fraudulent or criminal; or
(c) is incompatible with a clear mandate of public policy concerning the public health, safety and welfare or protection of the environment.See footnote 1
[IF OPTION 1 IS CHOSEN:] In this case, plaintiff has alleged that he/she was retaliated against because he/she disclosed or threatened to disclose to a supervisor or public body, an activity, policy or practice of defendant, his/her employer (or of another employer with which defendant has a business relationship), that plaintiff reasonably believed to be in violation of a law, rule or regulation promulgated pursuant to law. To prevail on this claim, the plaintiff has the burden of showing by a preponderance of the evidence that: (1) he/she reasonably believed that an activity, policy or practice of his/her employer (or another employer with whom defendant has a business relationship) was in violation of a law, rule or regulation promulgated pursuant to law; (2) he/she disclosed or threatened to disclose to a supervisor or to a public body that activity, policy or practice; (3) retaliatory action was taken against him/her (i.e., an adverse employment action occurred); and (4) there was a causal link between the plaintiff's action and the retaliatory or adverse action of the defendant.
To establish the first element of his/her claim, it is the plaintiff's burden to prove by a preponderance of the evidence that in light of the circumstances facing him/her and the knowledge possessed by him/her at the time he/she formed his/her belief, he/she had a reasonable belief that the defendant was violating the law a rule, or a regulation promulgated pursuant to law.See footnote 2 In making such a determination, you are to consider whether or not plaintiff possessed the qualifications necessary to establish a reasonable belief. In other words, you are to take into account plaintiff's educational background and employment responsibilities.See footnote 3 As I stated previously, the second element plaintiff must establish is that he/she disclosed or threatened to disclose to a supervisor or to a public body an activity, policy or practice of the employer (or another employer with which defendant has a business relationship) that the employer reasonably believed was in violation of the law, a rule, or a regulation promulgated pursuant to law. Thus, plaintiff must prove by a preponderance of the evidence, that he/she, in fact, threatened to make his/her claim or actually made his/her claim of improper activity known to either a supervisor or a public body. Plaintiff's own belief that certain conduct may have been improper or illegal is insufficient unless he/she threatened
to disclose his/her belief or his/her belief was actually made known to a supervisor or to a public body. A "supervisor" is an individual within defendant's organization who has the authority to direct and control plaintiff's work performance, who has the authority to take corrective action regarding the violation of the law, rule or regulation of which plaintiff complains, or who has been designated by defendant to receive written notices concerning any activity, policy or practice in violation of law, rule or regulation of which an employer may complain. Where a disclosure to a public body is involved, add the following: A "public body" means: (1) the United States Congress, and state legislature, or any popularly-elected local governmental body, or any member or employee thereof; (2) any federal, state, or local judiciary, or any member or employee thereof, or any grand or petit jury; (3) any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof; (4) any federal, state, or local law enforcement agency, prosecutorial officer, or police or peace officer;
(5) any federal, state, or local department of an executive branch of government; or (6) any division, board, bureau, office, committee or commission of any of the public bodies described in the above paragraphs of this subsection. I charge you that ____________________ is a "public body".See footnote 4 I also charge you that plaintiff was required to bring the complained-of activity, policy or practice which he reasonably believed to be in violation of law or rule or regulation promulgated pursuant to law to the attention of a supervisor by written notice before making the disclosure to [the public body], and to have afforded defendant a reasonable opportunity to correct the activity, policy or practice before making such disclosure, unless you find that either: (1) plaintiff was reasonably certain that the activity, policy or practice was known to one or more supervisors of defendant; or (2) plaintiff reasonably feared physical harm as a result of giving the required notice, and that the situation was emergency in nature. Finally, in establishing the third and fourth elements of his/her claim, the plaintiff must prove by a preponderance of the evidence that there was some retaliatory action taken against him/her and that there was a causal link between
his/her actions and the retaliation. In establishing the element of "retaliation", plaintiff must prove that he/she was discharged, suspended or demoted, or that some other adverse employment action was taken against him/her in the terms and conditions of his/her employment.See footnote 5 However, even if plaintiff shows that adverse action was taken against him/her, that does not end the inquiry. Plaintiff must prove that the action taken by his/her employer was retaliatory in nature. Plaintiff cannot prove his/her claim of retaliation merely by conclusory statementsSee footnote 6 or by speculating that the action taken against him/her was in response to disclosure he/she made or threatened to make. Rather, plaintiff must adduce tangible evidence of retaliatory action. He/she must adduce support for his/her feeling that the action taken against him/her was retaliatory.See footnote 7 You should note that evidence that the defendant's decision regarding the adverse action was made before plaintiff's disclosure or threatened disclosure is evidence that a retaliatory motive was not at work.See footnote 8 Defendant cannot be charged
with a retaliatory motive if you find that its conduct towards the plaintiff did not change perceptibly following the disclosure or threatened disclosure of his/her allegations. [IF OPTION 2 IS CHOSEN:] In this case, plaintiff has alleged that he/she was retaliated against because he/she provided information or testimony to a public body which was conducting an investigation, hearing o inquiry into the defendant's employer's (or other employer with which defendant has a business relationship) violation of a law, rule or regulation promulgated pursuant to law. To prevail in this claim, the plaintiff has the burden of showing by a preponderance of the evidence: (1) he/she actually provided information or testimony to a public body; (2) that the public body was conducting an investigation, hearing or inquiry concerning a violation of a law, rule or regulation promulgated pursuant to law by defendant employer (or by another employer with which the defendant has a business relationship); (3) retaliatory action was taken against the plaintiff (i.e., an adverse employment action occurred); and (4) there was a causal link between the plaintiff's action and the retaliatory or adverse action.
To establish the first element of his/her claim, it is the plaintiff's burden to prove by a preponderance of the evidence that he/she actually provided information or testimony to a public body. A "public body" means: (1) the United States Congress, and state legislature, or any popularly-elected local governmental body, or any member or employee thereof; (2) any federal, state, or local judiciary, or any member or employee thereof, or any grand or petit jury; (3) any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof; (4) any federal, state, or local law enforcement agency, prosecutorial officer, or police or peace officer; (5) any federal, state, or local department of an executive branch of government; or (6) any division, board, bureau, office, committee or commission of any of the public bodies described in the above paragraphs of this subsection. I charge you that ____________________ is a "public body".See footnote 9 Second, plaintiff must show that the public body was conducting an investigation, hearing or inquiry concerning the defendant's (or another employer
with which defendant has a business relationship) violation of a law, rule or regulation promulgated pursuant to law. Finally, in establishing the last two elements of his/her claim, the plaintiff must prove by a preponderance of the evidence that there was some retaliatory action taken against him/her and that there was a causal link between his/her actions and the retaliation. In establishing the element of "retaliation", plaintiff must prove that he/she was discharged, suspended or demoted, or that some other adverse employment action was taken against him/her in the terms and conditions of his/her employment.See footnote 10 However, if plaintiff shows that adverse action was taken against him/her, that does not end the inquiry. Plaintiff must prove that the action taken by his/her employer was retaliatory in nature. Plaintiff cannot prove his/her claim of retaliation merely by conclusory statementsSee footnote 11 or by speculating that the action taken against him/her was in response to plaintiff's providing of information or testimony to [the public body]. Rather, plaintiff must adduce tangible evidence of
retaliatory action. He/she must adduce support for his/her feeling that the action taken against him/her was retaliatory.See footnote 12 You should note that evidence that the defendant's decision regarding the adverse action was made before plaintiff's providing of information or testimony to [the public body] is evidence that a retaliatory motive was not at work.See footnote 13 Defendant cannot be charged with a retaliatory motive if you find that its conduct towards the plaintiff did not change perceptibly following the providing of information or testimony to [the public body] concerning the defendant's (or other employer with which defendant has a business relationship) violation of law, rule or regulation promulgated pursuant to law. [IF OPTION 3 IS CHOSEN:] In this case, plaintiff has alleged that he/she was retaliated against because he/she objected to or refused to participate in an activity, policy or practice which plaintiff reasonably believed was (a) a violation of a law, rule or regulation promulgated pursuant to law; (b) fraudulent or criminal; or (c) incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
To prevail on this claim, the plaintiff has the burden of showing by a preponderance of the evidence that (1) he/she reasonably believed that an activity, policy or practice of defendant, his/her employer, was [CHOOSE APPROPRIATE OPTION: in violation of a law, rule or regulation promulgated pursuant to law; was fraudulent or criminal; was incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment]; (2) he/she objected to or refused to participate in that activity, policy or practice; (3) retaliatory action was taken against him/her (i.e., an adverse employment action occurred); and (4) there was a causal link between the plaintiff's action and the retaliatory or adverse action of the defendant. To establish the first element of his/her claim, it is the plaintiff's burden to prove by a preponderance of the evidence that in light of the circumstances facing him/her and the knowledge possessed by him/her at the time he/she formed his/her belief, he/she had a reasonable belief that the activity, policy or practice of the defendant was [CHOOSE APPROPRIATE OPTION: in violation of a law, rule or regulation promulgated pursuant to law; was fraudulent or criminal; was incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment]. In making such a determination, you are to consider whether or not plaintiff possessed the qualifications
necessary to establish a reasonable belief. In other words, you are to take into account plaintiff's educational background and employment responsibilities.See footnote 14 As I stated previously, the second element plaintiff must establish is that he/she objected to or refused to participate in that activity, policy or practice of the defendant that he/she reasonably believed was [CHOOSE APPROPRIATE OPTION: in violation of a law, rule or regulation promulgated pursuant to law; was fraudulent or criminal; was incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment]. Thus, plaintiff must prove by a preponderance of the evidence, that he/she, in fact, objected to or refused to participate in an activity, policy or practice of the employer. Plaintiff's own belief that an activity, policy or practice of his/her employer was [CHOOSE APPROPRIATE OPTION: in violation of a law, rule or regulation promulgated pursuant to law; was fraudulent or criminal; was incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment], is insufficient unless he/she objected to or refused to participate in that activity, policy or practice. I charge you that [insert activity, policy or practice] is [CHOOSE APPROPRIATE OPTION: in violation of a law, rule or regulation promulgated
pursuant to law; was fraudulent or criminal; was incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment].See footnote 15 Finally, in establishing the third and fourth elements of his/her claim, the plaintiff must prove by a preponderance of the evidence that there was some retaliatory action taken against him/her and that there was a causal link between his/her actions and the retaliation. In establishing the element of "retaliation", plaintiff must prove that he/she was discharged, suspended or demoted, or that some other adverse employment action was taken against him/her in the terms and conditions of his/her employment.See footnote 16 However, even if plaintiff shows that adverse action was taken against him/her, that does not end the inquiry. Plaintiff must prove that the action taken by his/her employer was retaliatory in nature. Plaintiff cannot prove his/her claim of retaliation merely by conclusory statementsSee footnote 17 or by speculating that the action taken against him/her was in response to plaintiff's objections to or refusal to
participate in the activity, policy or practice of the employer. Rather, plaintiff must adduce tangible evidence of retaliatory action. He/she must adduce for his/her feeling that the action taken against him/her was retaliatory.See footnote 18 You should note that evidence that the defendant's decision regarding the adverse action was made before plaintiff's objection to or refusal to participate in the activity, policy or practice of the defendant is evidence that a retaliatory motive was not at work.See footnote 19 Defendant cannot be charged with a retaliatory motive if you find that its conduct towards the plaintiff did not change perceptibly following the objection to or refusal to participate in the employers, activity, policy or practice. [FOR ALL CASES:] In this case, the defendant is free to show that the retaliatory action taken against the plaintiff was animated by incompetence, disloyalty, reduction in force or any other legitimate reason.See footnote 20
Footnote: 1 N.J.S.A. 39:19-3
Footnote: 2 Sanchez v. California Unemployment Ins. Appeals Bd., 685 P.2d 61, 70 n. 11 (Cal. 1984).
Footnote: 3 House v. Carter-Wallace, Inc., 232 N.J. Super. 42 (App. Div. 1989), certif. denied, 117 N.J. 154 (1989).
Footnote: 4 Although there is no case law to this effect, it appears that the trial judge may determine whether a person or entity is a "public body" through the mechanism of judicial notice.
Footnote: 5 N.J.S.A. 34:19-2e.
Footnote: 6 Littman v. Firestone Tire & Rubber Co., 715 F. Supp. 90, 93 (S.D.N.Y. 1989) (interpreting New Jersey law).
Footnote: 7 N.J.S.A. 34:19-3; House v. Carter-Wallace, Inc., supra.
Footnote: 8 Littman v. Firestone Tire & Rubber Co., supra.
Footnote: 9 See, supra, note 5.
Footnote: 10 N.J.S.A. 34:19-2e.
Footnote: 11 See, supra, note 7.
Footnote: 12 See, supra, note 8.
Footnote: 13 See, supra, note 9.
Footnote: 14 See, supra, note 4.
Footnote: 15 It appears that whether a clear mandate of public policy existed for purposes of this statute also in a question for the trial judge. Cf. Wharten v. Toms River Community Hospital, 199 N.J. Super. 18, 25 (App. Div. 1985).
Footnote: 16 N.J.S.A. 34:19-2e.
Footnote: 17 Littman v. Firestone Tire & Rubber Co., 715 F. Supp. 90, 93 (S.D.N.Y. 1989) (interpreting New Jersey law).
