2.11 WRONGFUL DISCHARGE IN VIOLATION OF A CLEAR MANDATE OF PUBLIC
POLICY[1] (Approved 3/91; Revised 7/10)
Plaintiff has
alleged that he/she was wrongfully discharged from his/her position in
violation of public policy. I charge you that the policy of ________________ is
a clear mandate of public policy2; you must decide whether plaintiff
was discharged:
(3) for declining to perform an act or acts
which require a violation of that policy;
[or] whether, as defendant states, plaintiff was not discharged
for a reason related to that policy.
[choose appropriate corresponding option below:]
(1) In order to establish that plaintiff was
discharged in violation of a public policy, you must find by a preponderance of
the evidence that plaintiff’s discharge violated the [state the public
policy]. If plaintiff does not prove
this, you need not consider whether plaintiff’s discharge was wrongful. If plaintiff does prove that his/her
discharge violated the [public policy], then you must consider whether3 a
determinative factor for his/her discharge was a violation of the [public
policy], and not some other reason such as _______________________, which
defendant has asserted.
(2 or 3) In order to establish that plaintiff was
discharged for exercising rights under [public policy] or for declining to
perform an act or acts which require a violation of the [public policy], you
must find that plaintiff has
proved by a preponderance of the evidence that
he/she:
a. had a reasonable basis for believing
defendant engaged in a violation of the [state the public policy];4 and
b. brought
the alleged violation of the [state the public policy] to the attention of an
appropriate governmental outside authority or took other action reasonably
calculated to prevent the objectionable conduct.5
Plaintiff must prove that he/she
sufficiently expressed his/her disagreement with defendant’s [state the conduct
alleged to be in violation of public policy] to support the conclusion that
his/her discharge violates the mandate of public policy and is unlawful. That is to say, a complaint to an outside
agency or a direct complaint to senior corporate management will ordinarily be
sufficient. On the other hand, a
complaint to an immediate supervisor or passing remarks to co-workers generally
will not.6
[charge the following in every case]
It is the
plaintiff’s obligation to prove, by a preponderance of the evidence, that
his/her [describe the alleged adverse action in question,
such as demotion, firing, etc.] violated a clear mandate of
public policy.7, 8 In this regard, I remind you that
plaintiff was a so-called “at will” employee, that is he/she did not have a contract
of employment. In New Jersey,
such an employee can be discharged at the wish of the employer for any reason
or for no reason. He/she could be
discharged for a false cause, or for no cause at all, provided only that the
reason the employer discharged the employee did not violate any clear mandate
of public policy. A person fired
unfairly, but not fired in violation of a specific public policy, does not have
a cause of action for wrongful discharge in violation of public policy.
1 This
charge is to be given only
if a claim is asserted under Pierce v. Ortho Pharmaceutical Corp., 84 N.J.
58 (1980).
2 Whether there is a clear mandate of
public policy prohibiting the conduct is a question for the trial judge. Warthen v. Toms River Community Hospital,
199 N.J. Super. 18, 25 (App. Div. 1985).
3 Erickson
v. Marsh & McLennan, 117 N.J. 539, 560,
561 (1990). This seems tautological, but that is what the
opinion says.
8 Although the New Jersey Supreme
Court and Appellate Division have held that plaintiffs bringing claims under
the New Jersey Law Against Discrimination
(LAD), New Jersey Conscientious
Employee Protection Act (CEPA), and New
Jersey Family Leave Act (FLA) need only prove that the unlawful motive was
a determinative factor in the adverse employment decision rather than the sole
motivating factor, see, e.g., Bergen
Commercial Bank v. Sisler,
157 N.J. 188, 207 (1999) (so holding
with regard to LAD), Donofry v. Autotote
Systems, Inc., 350 N.J. Super.
276, 293 (App. Div. 2001) (so holding with regard to CEPA), and DePalma v. Building Inspection Underwriters,
350 N.J. Super. 195, 214 (App. Div.
2002) (so holding with regard to FLA), no reported New Jersey state or federal
court decisions appear to have addressed that issue with regard to New Jersey
common-law wrongful discharge claims.
12. a. The Supreme Court, subject to the limitations set forth in subsection b. of this section, may adopt Rules of Court to revise or supplement filing fees and other statutory fees payable to the court for the sole purpose of funding: