Differences Between a NJ CEPA Claim and a “Pierce Claim”

In a landmark case, Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), the New Jersey Supreme Court held that an employer cannot terminate an employee for reasons that violate a clear mandate of public policy. A “Pierce claim” can be brought by an employee allegedly discharged for refusing to engage in illegal or unethical conduct or for asserting legal rights, such as by acting as a whistleblower. 

While Pierce provides employees with common law protection against wrongful termination, the 1986 NJ Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., went further. CEPA is one of the most comprehensive whistleblower laws in the nation, prohibiting retaliation against employees who disclose, object to or refuse to participate in activities they reasonably believe to be illegal, fraudulent or in violation of public policy.

There are several differences between CEPA and Pierce claims, such as these:

• Statute of limitations — A Pierce claim can be filed for up to two years after the retaliatory act, as it is a common law action. In contrast, a CEPA claim must be filed within one year, making it crucial for employees to act quickly when considering legal action.
• Whistleblowing activities covered — Pierce claims protect employees who refuse to engage in conduct that violates public policy, such as refusing to break the law or violate professional ethics. CEPA provides broader protection, covering employees who report, object to, or refuse to participate in actions they reasonably believe violate the law, pose a danger to public health or safety, or constitute fraudulent or criminal activity.
• Types of retaliatory actions protected against — Under Pierce, an employee is typically protected only against wrongful termination or constructive discharge. CEPA covers a wider range of adverse employment actions, including demotions, pay cuts and harassment.
• Internal complaint requirement — CEPA requires employees to first report the alleged wrongdoing to a supervisor or a public body before filing a claim, unless they reasonably believe that reporting internally would be futile or could lead to harm. Pierce claims do not have a statutory internal reporting requirement.
• Availability of attorneys’ fees — Under CEPA, successful plaintiffs may recover attorneys’ fees, making it more financially feasible for employees to pursue claims. Pierce claims, being common law actions, do not provide for attorneys’ fees unless specifically agreed upon in an employment contract or awarded as part of damages.

Given the complexities of employment law in New Jersey, employees who believe they have been wrongfully terminated or retaliated against should seek advice from an experienced NJ whistleblower attorney to assess their options. Determining whether to pursue a Pierce claim, a CEPA claim, or both requires a careful evaluation of the facts, applicable laws, and legal deadlines.

Deutsch Atkins & Kleinfeldt, P.C., located in Hackensack, NJ, offers skilled legal advocacy in whistleblower and employment retaliation cases, serving clients throughout New Jersey. Call us at 551-245-8894 or contact us online to arrange a confidential consultation.