Whistleblowers Who Seek Lost Pay Must Prove Constructive Discharge or Termination
by Christina L. Saveriano, Esq.
An employee who brings a Whistleblower action under New Jersey’s Conscientious Employee Protection Act (“CEPA”) may only collect lost pay by proving they were forced out of their job—they may not collect such damages if they leave voluntarily.
The New Jersey Appellate Division held in Donelson v. DuPont Chambers Work, 412 N.J. Super. 17 (App. Div. 2010) that employees filing suit under CEPA seeking lost pay must establish that they were constructively discharged or actually terminated before they are entitled to an award for lost pay. This holding is consistent with the intent of CEPA and in accord with the law established for claims for economic damages arising under the state’s Law Against Discrimination.
In Donelson, the employee was awarded $724,000 in economic damages by a jury. On appeal, however, the court vacated the award because the employee failed to prove that he had been constructively discharged or terminated. The employee voluntarily had taken a leave of absence, and then had retired. Thus, there was no proven constructive discharge or actual termination by the employer that entitled the employee to economic damages.
The employee’s $724,000 award of economic damages was reduced to $0.00 because he voluntarily left employment. This ruling means that in the context of CEPA actions, the circumstances under which an employee leaves his or her employment are particularly high.