What Counts as Protected Activity Under CEPA?

The first question in many whistleblower cases is what the employee actually communicated or refused to do. A complaint about suspected falsification of safety records presents a different legal issue from a complaint that a supervisor is difficult to work with.

Identify the concern and its basis

CEPA addresses specified disclosures, testimony, objections and refusals. An attorney must connect the alleged conduct to the applicable statutory protection. Describing something as “unethical” or “unfair” does not, by itself, answer that question. N.J.S.A. 34:19-3.

An employee may have protection even if the suspected violation is not ultimately proved. The belief must nevertheless be objectively reasonable and sufficiently connected to an applicable authority. Dzwonar v. McDevitt, 177 N.J. 451, 462–64 (2003).

Preserve what you said

For a consultation, identify the date, recipient and substance of each report. If your concern was verbal, write a present-day chronology identifying what you remember and when you prepared the chronology. Keep recollection separate from exact quotations or contemporaneous notes.

Explain the facts that led to the concern, any policy or professional standard you relied on, and the response you received. Do not rewrite an original message to make it sound more legal.

Assess the whole sequence

A potentially protected complaint is only part of a claim. The employment action and the connection to the complaint also require evidence. Learn how causation is evaluated or prepare for a consultation.