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By Monica Bay | Law Technology News

E-discovery vendors will be happy to hear the metrics released Thursday by The Cowen Group, a New York-based headhunter and research consultancy, which show a strong spurt of growth in electronic data discovery workload at law firms. Writes managing partner David Cowen, in the executive summary: “2012 has been a year of progress and promise for e-discovery professionals.” The survey, of 88 law firm and corporate law department professionals, found that 70 percent of law firms reported an increase in workload for their litigation support and e-discovery departments. That figure, says Cowen, is a sharp rise from the 2Q 2009 report, where only 42 percent of firms reported increases. Corporate law departments followed suit, with 77 percent of respondents also reporting workload spikes.

Bolstering the prediction, 55 percent of corporate and 62 percent of firm respondents said they “anticipate outsourcing a significant amount of e-discovery to third-party providers (with some organizations expected to do both).” The firms expect to grow capacity either by adding head count or purchasing new (or updating) technology, he notes.

The Law Offices of Stephan T. Mashel – NJ Employment Lawyers. They proudly represents New Jersey’s executive and professional workforce in all areas of employment law. They have prevailed in cases that have altered the landscape of discrimination and employment law in New Jersey. Experience and knowledge count when it comes to including discrimination on the basis of age, gender, pregnancy, race, religion, or disability, sexual harassment, whistleblower retaliation, severance package negotiations, executive compensation, breach of contract, non-compete agreements, wage and hour claims, and unemployment insurance appeals. They provide experienced, aggressive courtroom representation in all federal and state courts in the State of New Jersey. They have helped thousands of clients win justice, vindicate their rights, and obtain the financial recovery they deserve.

At the Law Office of Stephan T. Mashel, our NJ employment lawyers are passionate about protecting workers and enforcing employee rights throughout New Jersey. We fight to stop unlawful treatment on the job and aggressively pursue claims against employers in order to recover the damages and losses our clients have suffered.

The law firm of Stephan T. Mashel, located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees. Unlike other firms that practice law in a variety of areas, we practice in only one area – employment rights.

A New Jersey nurse was fired from her position at a long-term senior care facility for whistleblower activity. Nurse Jane objected to and refused to adhere to her employer’s practice of requiring nurses in her position to record any physician’s orders from the physician’s log book into the corresponding patient’s log book in case another nurse had failed to record a matching entry into the corresponding patient’s log book. Jane objected to this practice because if the initial nurse who made the recording into the physician’s log book (but failed to record in the patient’s log book) had made an inaccurate recording in the physician’s log book, then Nurse Jane could be recording the wrong medication or treatment prescribed into the patient’s log book. If such a mistake were made, it would be she whom the blame would be imputed to, and not the nurse who originally made the mistake. Such a mistake could result in the whistleblower nurse having her nurse’s license revoked by the NJ Board of Nursing.

Fearing losing her license, Jane contacted the Board of Nursing to determine whether or not she is required to abide by such a policy. The Board said she could follow the practice of filling in another nurse’s missing entries, but only so long as she was willing to put her nurse’s license on the line. Refusing to take such a risk, she continued to refuse to record other nurses’ missing entries and was resultantly fired from her job. Upon dismissal, Jane filed suit against her former employer under the New Jersey Conscientious Protection Act (CEPA).

CEPA was enacted to protect employees from retaliation after they disclose (“blow the whistle”) or object to their employer’s participation in unlawful or harmful activity. Retaliation can be discharge, suspension, demotion or other adverse employment action taken against an employee in the terms and conditions of employment. Under CEPA, an employee is protected from such retaliation if the employee either discloses or objects to an activity of the employer which the employee reasonably believes is in violation of law, regulation, rule or incompatible with a clear mandate of public policy.

The New Jersey Family Leave Act (FLA) applies to all public and private-sector employers with 50 or more employees (the FLA does not require those 50 or more to be employed within a 75 mile radius of the employee seeking leave, nor do they need to be in the state of New Jersey).

An FLA-eligible employee is one who has worked 1,000 hours or more (including overtime) during the preceding 12 months. Hours for which the employee was paid workers compensation benefits may be included in the 1,000 hours to establish eligibility. At the employer’s option, other types of paid leave may also be counted toward FLA eligibility.

Eligible employees may take family leave for up to 12 weeks within any 24-month period, provided the employee makes a reasonable effort to schedule the leave so as to not unduly disrupt the employer’s operation. Public employees may use a voluntary furlough of up to 30 work days for FLA or FMLA purposes. The furlough may not be applied to sick or unpaid disability leave, but may be used for parenting or family care, and a 60-day furlough extension is available for education or family care needs.

The New Jersey Conscientious Protection Act (CEPA) was enacted to protect employees from retaliation after they disclose, refuse to participate in or object to (or “blow the whistle”) their employer’s participation in unlawful or harmful activity. Under CEPA, an employee is protected if the employee either discloses or objects to an activity of the employer which the employee reasonably believes is in violation of law, regulation, rule or incompatible with a clear mandate of public policy.[1] Also, CEPA prohibits an employer from taking retaliatory action against an employee who objects or refuses to participate in “any activity, policy or practice which the employee reasonably believes … is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”[2]

“Retaliatory action” is defined as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.[3]

As to a health care professionals, CEPA protects an employee from retaliation for having disclosed, refused to participate in or objected to any practice, procedure, action or failure to act of an employer that is a health care provider which violates any law or any rule, regulation or declaratory ruling adopted pursuant to law, or any professional code of ethics.[4]  Improper quality of patient care has been construed broadly in some cases.  A plaintiff-nurse brought a CEPA claim when she was discharged for refusing to prepare a fraudulent disciplinary write-up on a subordinate nurse. The subordinate nurse prepared a write-up for a nurse’s aide who left patients alone, naked and soiled while smoking cigarettes with a supervisor. The New Jersey Appellate Division concluded that the plaintiff-nurse there had an objectively reasonable belief that the filing of charges against the subordinate nurse was ‘violative of the proper quality of patient care’ because punishing the subordinate nurse could not be “consistent with good patient care.”[5]  The plaintiff-nurse was not required to identify a specific law, rule, regulation, declaratory ruling or professional code of ethics.

New Jersey’s Conscientious Employee Protection Act (CEPA) is one of the most far-reaching whistleblower laws in the nation. It was enacted to protect employees from the retaliatory actions of their employers for having disclosed or “blown the whistle” on their employer’s participation in unlawful or harmful activity.  Our New Jersey Supreme Court has made clear the overarching goal of CEPA is to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” CEPA effectuates important public policies of overcoming the victimization of employees and protecting those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers.

As a whistleblower an employee is vested with protection if the employee either discloses or objects to an activity of the employer which the employee reasonably believes is in violation of law, regulation, rule or incompatible with a clear mandate of public policy. In order to establish a claim under CEPA an employee must show that it is more likely than not that: (1) he/she disclosed or objected to unlawful or fraudulent conduct (or conduct affecting the quality of patient care for medical professionals); (2) he/she reasonably believed that his employer’s conduct was violating either a law, rule, regulation, or clear mandate of public policy; (3) an adverse employment action was taken against him/her; and (4) a causal connection exists between him/her whistle-blowing activity (disclosure or objection) and the adverse employment action.

Many courts have supported the principle that employees who complain of violations of law or public policy while acting within their job duties are protected by New Jersey’s whistleblowing laws.  Our New Jersey Supreme Court has upheld a whistleblower verdict in favor of a custodian who alleged he was terminated from his school district employer for complaining about broken and clogged toilets and an unlit exit sign, even though raising and correcting such issues fell within his job duties; Our State Supreme Court upheld the whistleblower verdict in favor of a non-tenured industrial arts middle school teacher whose contract was not renewed in retaliation for his complaints about unsatisfactory health and safety conditions in the school’s metal shop;  Our New Jersey Supreme Court upheld a whistleblower verdict where the employee, a Director of Environmental Health and Toxicology, alleged that he was terminated for objecting to excessive levels of benzene in gasoline produced and sold by the employer’s subsidiary in Japan.  These and other similar cases evidence the liberal approach our highest state court has time and again taken in effectuating CEPA’s goal of protecting employees who act in the public interest.  Be mindful that, “the core value embodied in CEPA is that employees courageous enough to object to illegal, fraudulent or harmful activity by their employers in order to protect the public welfare deserve to be shielded from retaliation by their employers.”