Donelson v. DuPont Chambers Works (A-112-09, June 9, 2011), a recent case from the New Jersey Supreme Court held that an employee may recover for back pay and front pay under the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 to -8, by showing that the employer’s retaliation caused mental instability of the employee, even if the employee did not allege actual or constructive discharge.

CEPA is a New Jersey statute that prohibits retaliation by employers where an employee: discloses to a public body any policy/practice of the employer that the employee reasonably believes is illegal; participates in a public body’s investigation of the employer; or refuses to participate in a policy/practice of the employer that the employee reasonably believes is illegal, fraudulent, or against public policy.  Retaliation of the employer can be an adverse employment action, which typically includes demotion, termination, suspension, change in benefits of employment, or a constructive discharge – where the employee resigns because employer makes the relationship so intolerable that no reasonable person could be expected to continue working.

In this case, the employee expressed concerns and filed an OSHA complaint about safety near the employer’s security gate as well as unsafe working conditions near certain highly toxic chemicals.  In retaliation, the employer subjected the employee to verbal abuse, wrongfully accused him of falsifying timecards, gave a negative performance review, suspended him, required a mental-health exam for his return to work, and required him to work twelve-hour shifts in isolation.  The employee began seeing a psychiatrist and eventually retired with disability.

The court interpreted CEPA liberally in light of the public policy to deter workplace reprisals and found that the employer had engaged in “retaliatory action” under CEPA.  The court found that the actions taken by the employer should be considered adverse employment actions that caused the employee to suffer a mental breakdown which caused him to be unfit to return to duty.  The court held: “If the employer’s retaliatory action is the proximate cause of the employee’s mental unfitness for duty, then CEPA grants the employee all remedies available in common law tort actions.”