In 2011, Tammy Davis—a cashier at the Supervalue market in Burlington, N.J.—filed a workers’ compensation claim against Acme Markets, the corporate entity that oversees Supervalue. Subsequently, in 2012, Ms. Davis, who had been with Supervalue for more than 20 years, was fired. According to Acme, the termination was due to Davis improperly recording sales at the Burlington store.
But she connected these two events, and filed a lawsuit against Acme in December 2012, alleging that the company had terminated her because of the workers’ compensation claim. She asserted that the firing was retaliatory, and in violation of the Conscientious Employee Protection Act (“CEPA”) and the New Jersey Law Against Discrimination (“LAD”).
The case was initially filed in New Jersey Superior Court. But it was eventually removed to federal court. And the United States District Court for the District of New Jersey quickly granted Acme’s motion to dismiss.
According to one article, CEPA’s “protections only apply to an employee who engages in ‘whistleblowing,’ which requires a complaint or objection that the employer’s conduct is unlawful or otherwise incompatible with public policy.” Filing a workers’ compensation claim does not fall within the definitions of whistleblowing under the statute.
Similarly, “to establish a retaliation claim under the LAD, an employee must engage in ‘protected activity’ under that statute.” Protected activities under the LAD relate to being safe from losing employment due to protected personal characteristics, including age, race, sex, religion, or disability. And, clearly, being protected from losing employment due to filing a workers’ compensation claim also does not fall within the definitions of a protected activity under the LAD.
Importantly, there does exist a cause of action that permits employees to sue employers for allegations of discharge for workers’ compensation filings. However, for whatever reason, Ms. Davis sued under CEPA and the LAD, neither of which could help her in this case.
If you have questions about workers’ compensation issues like this please contact our office at 609-246-0668 or e-mail me at sgaylord@gaylordpopp.com.
