It is official, the New Jersey Appellate Division has removed the teeth from the waiver provisions in the Conscientious Employee Protection Act, N.J.S.A. 34:19-8 (“CEPA”).  In a recent opinion, Notte v. Merchants Mutual Life Ins., decided on July 25, 2006, the Appellate Division held that, regardless of the clear language of the statute, CEPA’s waiver provision does not bar a plaintiff from repleading his time-barred CEPA claims as separate common law and statutory wrongful-discharge claims. 

The facts of the case are straightforward.  The plaintiff was employed by Merchants as a supervisor.  A co-worker, Theresa Notte, alleged a hostile work environment and retaliation claim against William Wolfe, another supervisor at Merchants.  The plaintiff, clearly a conscientious employee, objected to the harassment and retaliation.  Proving that no good deed goes unpunished, the plaintiff was swiftly terminated for voicing his concerns.  As a result of his termination, the plaintiff instituted claim, alleging only that his wrongful discharge was in violation of CEPA.  Following responsive pleadings, the defendants moved for partial summary judgment, on the basis that plaintiff’s CEPA claims were time-barred under CEPA’s one year statute of limitations.  The plaintiff conceded this fact and his claims were dismissed. 

One would think that this would be the end of the road for the plaintiff, however, in a move that must have taken some creativity and more than a little moxie, the plaintiff requested leave to replead his time-barred CEPA claims as separate common law discharge and Law Against Discrimination retaliation claims, which by that point were also time barred.  The trial court denied plaintiff’s request.  The Appellate Division reversed, holding that the actions were not time-barred by virtue of the relation back doctrine.  Finally, the Supreme Court affirmed the Appellate Court, specifically remanding the determination of whether plaintiff’s claims were barred by virtue of CEPA’s waiver provision.

The relevant waiver provision of CEPA reads:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

While one might take the second clause of the waiver provision to mean that institution of a CEPA claim acts as a general waiver of other rights and remedies under state law, the Appellate Division does not, at least not on the facts presented. 

The Appellate Division referred to its finding in Crusco v. Oakland Care Ctr., Inc., in which it held that a plaintiff whose CEPA claims were time-barred was not precluded by the CEPA waiver provision from bringing a common law wrongful discharge claim against her former employer.  In that case, it was determined that failure to bring a CEPA claim in a timely fashion essentially meant that the claim was not brought “in accordance with the act.”  To buoy this assertion, the Appellate Division looked to the remedial nature of the legislation, stating that the legislation was created to expand the rights of employees, rather than limit them.  In other words, it would be illogical to deny the plaintiff his day in court because he improperly plead a claim arising under remedial legislation. 
Of course, one is left to wonder what, exactly, the legislature was thinking when it enacted this waiver provision.  Or, even more puzzling, what situation could arise where the waiver provision would be both applicable and have any practical effect. 

The Appellate Division offers little assistance on either of these questions, resolving that it need not determine the preclusive effect of a CEPA claim.  Thus, the “several complex questions as to the extent of its [CEPA’s waiver provision] application and its interaction with other sources of law,” envisioned by the Supreme Court in Young v. Schering Corp., are resolved by the Appellate Division with a broad stroke.  Any claim brought under CEPA will not effect a waiver of any kind if the CEPA claim is not “properly brought,” under the Court’s latest construction of the phrase.

-Christopher M. Erb, Esq.