Common Law Retaliatory Discharge Claims Still Exist Despite the Enactment of CEPA; An Employee’s Internal Complaint Could Suffice to Support Such a Claim

Tartaglia v. UBS PaineWebber Inc., et al., 2008 WL 5274869 (N.J. Supreme Court, December 16, 2008) – The New Jersey Supreme Court recently reiterated that common law claims for retaliatory discharge, as recognized in Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), were not entirely supplanted by the Legislature’s enactment of the Conscientious Employee Protection Act (CEPA). Although a plaintiff cannot proceed on both theories simultaneously, a common law claim still exists where an employee’s discharge is contrary to a clear mandate of public policy. Such a claim does not require actual, or even threatened, notification to an outside agency. Rather, it requires only the expression by an employee of a disagreement with policy, directive or decision, based upon a clear mandate of public policy.

Note: This article was published in the January 2009 issue of the New Jersey eAuthority.