By: Ralph R. Smith, 3rd, Esq.
As many employers already know, New Jersey has one of the broadest whistleblower protection laws in the United States. In the past, the Conscientious Employee Protection Act (“CEPA”) has been expansively interpreted to provide wide ranging protections to not only employees who engage in whistleblowing activities but also independent contractors, who while technically not employees, are nevertheless covered by the law because such persons frequently are performing similar types of services for companies.
One issue that has never been addressed in any reported New Jersey state court decision is whether volunteers who perform services for companies are also entitled (like independent contractors) to the protections afforded by CEPA for engaging in whistleblowing activities. That has now changed and, surprisingly, the result was not what one would have expected given the way that CEPA’s coverage has been construed expansively in the past by New Jersey’s Courts.
In Sauter v. Colts Neck Volunteer Fire Co., No. 2, A-0354-15T1, 2017 WL 4020461 (N.J. Super. Ct. App. Div. Sept. 13, 2017), Plaintiff was a long time member of the Defendant’s all volunteer fire department. Along with serving as a volunteer in Defendant’s fire department, Plaintiff was also a full time employee of the Monmouth County’s Sheriff’s Office. Defendant’s fire fighters were all unpaid volunteers. However, firefighters could participate in a Volunteer Length of Service Program (“LOSAP”), which provided a small amount of compensation to volunteers, ranging from $400 to $1150 a year, depending on length of service. Members could access these funds only after they were no longer with the fire company. Along with providing the opportunity to participate in the LOSAP, volunteer fire fighters were also provided with workers’ compensation coverage for any injuries occurring while providing services to the fire company.
Plaintiff was a twenty (20) year member of the fire department. During that time, Plaintiff had accumulated $5,871 in LOSAP benefits. In 2013, the members of the fire department voted to terminate Plaintiff’s membership in the company. As the court said in its decision, the Plaintiff’s twenty (20) years of membership was less than harmonious. According to the court’s decision, the members of the department terminated Plaintiff because he was “abusive’, “angry”, and “belligerent.” Plaintiff in his lawsuit challenged his termination by claiming that it was wrongful under CEPA because he had previously engaged in certain whistleblowing activities that included challenging the filing of an insurance claim by the department because he thought it was fraudulent. Plaintiff likewise had complained that fire department members were wrongfully dumping their personal garbage in a fire department dumpster as well.
This was not the first CEPA action that Plaintiff filed against the Department. Earlier, in 2004, Plaintiff filed a previous CEPA claim after his brother (a fire company supervisor who actually voted for Plaintiff’s dismissal) was denied a contract to renovate the fire company’s hall. That claim was ultimately settled, but even after the settlement, Plaintiff continued to complain that he was not provided with all the counsel fees that he thought were due to him.
In its reported decision, the Appellate Court held that the dismissal of Plaintiff’s CEPA claim in this case by the Trial Judge was appropriate because CEPA did not apply to persons who are strictly volunteers and not employees. Relying upon the language of the CEPA statute itself, the court concluded that only persons who receive actual financial remuneration for the services that they perform are entitled to CEPA’s protections because the law was designed to protect such persons from suffering any adverse actions that would affect their continuing financial livelihood. The Plaintiff had argued that the funds received through the LOSAP program were sufficient remuneration to make him an employee under CEPA. The court rejected this argument, finding that the minimal amount received did not approximate the monetary value of the services that firefighters actually provided to the Department. The court also rejected Plaintiff’s additional request that CEPA’s coverage be expanded to include volunteers so they too could fall within CEPA’s protections just like independent contractors. The court rejected this request to expand CEPA’s protections declaring that doing so would not serve CEPA’s goal of protecting a person’s livelihood from risk because of whistleblowing activities.
While technically this case did not involve an employer or employment type relationship, the decision can only be considered a positive one for employers because the court could have continued to expansively interpret CEPA and bring within its scope many other service providers that employers might retain who are not technically employees (as occurred with independent contractors) and are right now not covered by the law. The case also serves as a continuing warning to employers that they must rigorously adhere to CEPA’s requirements because retaliation lawsuits remain commonplace and are still very popular claims being brought today in the New Jersey courts. In this case alone, we see that this was the second CEPA claim that this Plaintiff filed against the very same fire department. Thus, any type of perceived retaliation will no doubt result in similar types of lawsuits, so it is important, now more so than ever, that employers make employment related decisions on legitimate grounds, for legitimate business reasons, and not to retaliate against an employee for past whistleblowing conduct.