Lippman v. Ethicon, New Jersey Whistleblower Protection

Discharged woman

Case Summary Lippman v. Ethicon

An employee whose job includes regulatory compliance may file a wrongful discharge claim as a whistleblower.  

 

JOEL S. LIPPMAN, M.D., Plaintiff-Respondent and Cross-Appellant,
v.
ETHICON, INC. and JOHNSON & JOHNSON, INC., Defendants-Appellants and Cross-Respondents.
Nos. A-65/66-13, 073324Supreme Court of New Jersey.

Argued January 20, 2015.Decided July 15, 2015.Francis X. Dee argued the cause for appellants and cross-plaintiffs (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Dee and Stephen F. Payerle, on the briefs).

Bruce P. McMoran argued the cause for plaintiff and cross-appellant (McMoran, O’Connor & Bramley, attorneys; Mr. McMoran and Michael F. O’Connor, on the briefs).

Adam N. Saravay argued the cause for amici curiae New Jersey Business & Industry Association, New Jersey Civil Justice Institute, Employers Association of New Jersey, New Jersey Defense Association and New Jersey Management Attorneys, Inc. (McCarter & English, Proskauer Rose, Gibbons, and Drinker Biddle & Reath, attorneys; Mr. Saravay, David R. Kott, Christopher S. Mayer, Mark A. Saloman, Daniel L. Saperstein, Allana M. Grinshteyn, Nicholas M. Tamburri, Joseph J. Sarno, Natalie H. Mantell, Michelle M. Bufano, Michelle G. Haas, John A. Ridley, and Lawrence J. Del Rossi, of counsel and on the briefs).

Andrew W. Dwyer argued the cause for amici curiae The New Jersey Work Environment Council, The New Jersey State Industrial Union Council, and 25 other environmental, labor, consumer and community organizations, and The New Jersey Association for Justice (The Dwyer Law Firm, Law Office of Bennett D. Zurofsky, and Schiffman, Abraham, Kaufman & Ritter, attorneys; Evan L. Goldman, of counsel; Mr. Dwyer, Mr. Zurofsky, Mr. Goldman, and Kristen Welsh Ragon on the briefs).

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUDGE CUFF (temporarily assigned) did not participate.

JUSTICE LaVECCHIA delivered the opinion of the Court.

Cross-petitions for certification were granted in this matter to address issues related to the application of the Conscientious Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to-14, to so-called “watchdog” employees. More specifically, both petitions concern whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of CEPA.

Plaintiff’s normal job duties included providing his medical opinion about the safety of defendant pharmaceutical company’s products. After he was terminated from his high-level position with the corporation, he filed this CEPA action claiming that his employer retaliated against him. The trial court granted defendants’ motion for summary judgment on the ground that plaintiff’s performance of his regular job duties could not constitute CEPA-protected conduct. The Appellate Division reversed, concluding that watchdog employees are among those most in need of CEPA’s protection, and that the plain language of the statute does not exempt from protection conduct that constitutes a job duty. Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 406-08 (App. Div. 2013). In so holding, the panel also articulated a tailored standard for evaluating CEPA claims asserted by watchdog employees. Id. at 410.

According to plaintiff, the Appellate Division’s standard, in effect, raised the bar for the proof that such employees must present in order to establish a prima facie CEPA claim because it requires demonstration that the employee either refused to participate in the objectionable conduct or pursued and exhausted all internal means of securing compliance. Plaintiff’s petition focuses on whether the Appellate Division improperly added an element to his CEPA-authorized cause of action, thereby subjecting watchdog employees to a different and heightened burden compared to other CEPA plaintiffs. Defendants’ petition allows this Court to review the Appellate Division’s published decision holding that performance of job duties by a watchdog employee may constitute CEPA-protected activity.

For the reasons that follow, we affirm the Appellate Division’s judgment that CEPA’s protections extend to the performance of regular job duties[1] by watchdog employees. In so holding, we disapprove of the standard that the panel articulated for assessing claims by such employees. The panel’s attempt to add clarity to the assessment of claims by such plaintiffs impermissibly results in adding to the burden for this subset of CEPA plaintiffs. By its very terms, the statutory cause of action created by CEPA applies equally to all employees. There is no evidence of legislative intent to have the Act operate any other way. Accordingly, we hold that there can be no additional burden imposed on watchdog employees seeking CEPA protection, unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection.

I.

A.

This matter arose upon the filing of plaintiff’s complaint in the Law Division against Ethicon, Inc. (Ethicon) and Johnson & Johnson, Inc. (J&J) (collectively defendants), alleging CEPA violations under N.J.S.A. 34:19-3(a) and (c). Plaintiff Joel S. Lippman, M.D.,[2] alleged in his complaint, among other claims, that his employment was terminated due to his whistleblowing activities, which plaintiff identified as his actions in reporting a number of products as dangerous and in violation of the federal Food, Drug and Cosmetic Act, 21 U.S.C.A. §§ 301-399f, and advising that defendants either recall the products or perform further research.[3] This appeal comes to us on a summary judgment record; accordingly, we review the facts in the light most favorable to plaintiff, the non-moving party in this matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 540 (1995). The facts are set forth below as presented by the parties and as described by the Appellate Division, Lippman, supra, 432 N.J. Super. at 382-405.

Plaintiff was employed at Ethicon, a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination. Prior to his work at Ethicon, he worked from 1990 to 2000 at Ortho-McNeil Pharmaceutical (OMP), as director of medical services and then vice president of clinical trials. Both Ethicon and OMP are subsidiaries of J&J.

Initially plaintiff served at Ethicon as vice president of medical affairs. In 2002, he was promoted to worldwide vice president of medical affairs and chief medical officer of Ethicon. His direct superior and the person to whom he reported at Ethicon was Dennis Longstreet, the company group chairperson. Longstreet reported to Michael J. Dormer, J&J’s chairperson for the medical devices and diagnostic group. In 2005, Sherilyn S. McCoy replaced Longstreet as Ethicon’s company group chairperson.

As vice president of medical affairs, “plaintiff was `responsible for safety, ensuring that safe medical practices occurred in clinical trials of [Ethicon’s] products; … medical reviews, information from a medical standpoint; [and] medical writing.'” Lippman, supra, 432 N.J. Super. at 388 (alterations in original). Consistent with those responsibilities, plaintiff served on multiple internal review boards for Ethicon. Generally stated, those boards addressed strategic product activities and evaluated the health and safety risks of products. As a member of those boards, plaintiff’s function was to provide medical and clinical expertise and opinions. Id. at 388-90. In short, Lippman was part of Ethicon’s high-level policy decision making.

Of particular relevance in this matter, plaintiff was a member of a quality board that “was created to assess the health risks posed by Ethicon’s products and to provide `medical input’ in determining whether the company needed to take corrective measures with respect to their products in the field.” Id. at 389. At times, recall of a product would become “necessary to conform to the requirements of the particular regulatory agency with jurisdiction, internal policy directives, and/or to protect the health and safety of the patient[s].” Ibid. The quality board could also take other types of actions, such as “correcting a product in the field.” As structured within Ethicon’s organization, the quality board was to be accorded “`the final say'” in deciding whether to take corrective action regarding a product, “even in the absence of a directive from a governmental agency.” Ibid. The quality board’s membership included the head of research and development, the chief financial officer, the head of operations, and the vice president of quality and regulatory affairs. Members of the quality board were “expected to express their view points from their” area of knowledge or expertise. Ibid.

Plaintiff claims numerous instances in which he, in his role on the internal review boards generally, and specifically the quality board, objected to the proposed or continued sale and distribution of certain Ethicon medical products. The Appellate Division opinion recounts many in detail. See id. at 390-403. Those instances, as summarized, reflect that plaintiff’s objections were based on his opinion that the products were medically unsafe and that their sale violated various federal and state laws and regulations. Thus, plaintiff voiced concerns about the safety of various products and his opinion, in some instances, that the particular product under discussion should not go to market, that it should be recalled, or that further research was necessary. Plaintiff claims, and the record contains support, that plaintiff received “push back” from other members of these boards and executives whose interest and expertise aligned with the business priorities of Ethicon. Needless to say, the committees were comprised of professionals with their own judgments and opinions on the subjects under discussion. Certainly, in this record, factual disputes exist as to precisely what plaintiff, other board members, and executives at Ethicon said and did during these disagreements. Moreover, the record also indicates that Ethicon ultimately followed many of plaintiff’s recommendations.

In April 2006, plaintiff was advocating the recall of DFK-24, a product he believed was dangerous. Other Ethicon executives were resistant to recalling the product, but Ethicon eventually did so in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff’s employment. According to McCoy’s deposition testimony, “`Dr. Lippman was terminated because he had a relationship, an inappropriate relationship, with someone who worked directly for him.'” Id. at 404. Based on the record before us, “the alleged relationship came to McCoy’s attention when an employee, who was unsatisfied with the performance rating he believed plaintiff had given him, mentioned [the relationship] to McCoy as a possible explanation or motive for plaintiff’s alleged unfair assessment of his work performance.” Ibid. McCoy acknowledged that plaintiff’s purported romantic partner “was an employee in a department under plaintiff’s authority during part of the alleged relationship, but “she did not directly report to plaintiff at any time.” Ibid. Further, McCoy admitted that she did not know of “any prior case in which an Ethicon or J&J employee was terminated (or even disciplined) for having a consensual romantic relationship with an alleged subordinate,” and she was unaware of any written J&J policy “prohibiting the type of consensual romantic relationship that allegedly occurred between plaintiff and the employee.” Id. at 404-05.

B.

Defendants filed a motion for summary judgment, seeking to dismiss plaintiff’s CEPA action. The trial court granted the motion. The court relied, in part, on the prior Appellate Division decision in Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), in concluding that, because plaintiff admitted “it was his job to bring forth issues regarding the safety of drugs and products,” he “failed to show that he performed a whistle-blowing activity” protected by CEPA. The court denied plaintiff’s motion for reconsideration.

Plaintiff appealed, and the Appellate Division reversed in a published decision. Lippman, supra, 432 N.J. Super. 378. The panel rejected the trial court’s interpretation of protected whistleblowing conduct under N.J.S.A. 34:19-3(c), which the trial court held precluded a plaintiff who “[o]bjects to[] or refuses to participate in” employer behavior as part of his or her job duties from entitlement to protection under CEPA. See id. at 381, 406-07, 409-10. The panel found the trial court’s construction of the statute to be inconsistent with the broad remedial purposes of CEPA. See id. at 381, 406-07. To the extent that such a reading was implicitly espoused or endorsed in Massarano, the Lippman panel expressly declined to follow it. Id. at 381-82, 406.

In emphasizing the incongruity of a construction that cuts out watchdog employees from CEPA’s remedial protective purpose, the panel noted especially that watchdog employees are the most vulnerable to retaliation because they are “uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.” Id. at 406-07. As further support that job duties are not outcome determinative in a CEPA claim, the panel noted that CEPA’s definition of an “employee” eligible for the Act’s protection is broad and does not limit protection based on job title or function. Id. at 407 (citing N.J.S.A. 34:19-2(b)).

Under the panel’s interpretation of protected whistleblowing conduct, “[i]f an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against that individual because of his or her performance of duties in good faith, and consistent with the job description.” Id. at 410. Applying that approach to the case at hand, the panel found that genuine issues of material fact existed and held that plaintiff had pled facts sufficient for a rational jury to find that defendants violated CEPA when they terminated his employment. See id. at 382, 408-09.

Importantly, the Appellate Division proceeded to articulate a “paradigm” for a prima facie CEPA cause of action for employees who perform watchdog activities. The panel built from a model set forth by this Court in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003), and defined a watchdog employee as an “employee who, by virtue of his or her duties and responsibilities, is in the best position to: (1) know the relevant standard of care; and (2) know when an employer’s proposed plan or course of action would violate or materially deviate from that standard of care.” Lippman, supra, 432 N.J. Super. at 410. The panel then instructed that in order for a watchdog employee to present a prima facie CEPA claim, the employee must demonstrate the following elements:

First, the employee must establish that he or she reasonably believed that the employer’s conduct was violating either a law, government regulation, or a clear mandate of public policy. Second, the employee must establish that he or she refused to participate or objected to this unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply. To be clear, this second element requires a plaintiff to show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct. Third, the employee must establish that he or she suffered an adverse employment action. And fourth, the employee must establish a causal connection between these activities and the adverse employment action.

[Ibid. (second emphasis added).]

Although this four-prong test largely tracks the standard for a prima facie CEPA claim that this Court articulated in Dzwonar, supra, 177 N.J. at 462, the language emphasized above is not part of the Dzwonar test. As the panel’s holding recognized, under this additional requirement, unless a watchdog employee refused to participate in the conduct, such an employee must demonstrate that he or she “pursued and exhausted all internal means of securing compliance.” Lippman, supra, 432 N.J. Super. at 410.

As noted, this Court granted the petition and cross-petition filed in this matter. Lippman v. Ethicon, Inc., 217 N.J. 292 (2014).

II.

A.

1.

In support of their petition, defendants assert that the Appellate Division erred in holding that protected activity under CEPA extends to watchdog employees’ regular job responsibilities. They advance a three-prong argument: (1) the statutory language of CEPA does not support the Appellate Division’s broad holding; (2) the Appellate Division’s holding contravenes previous appellate decisions; and (3) the holding adversely impacts the “balance between the scope of protected activity and the ability of employers to properly run their business.”

First, defendants argue that CEPA’s language limits protected activity to an employee’s conduct that is in opposition to the employer. Specifically, defendants contend that the “objects to” clause, which provides that employees must “object[] to, or refuse[] to participate in any activity, policy or practice” of the employer to receive CEPA protection, N.J.S.A. 34:19-3(c), indicates that the statute protects only employee activity that goes beyond the scope of the employee’s job responsibilities. According to defendants, “[t]he employee logically cannot … object[] or refuse[] to participate in the very activity, policy or practice that he or she is helping to formulate on behalf of the organization.” Applying their construction to the matter at hand, defendants argue that all of plaintiff’s alleged whistleblowing activities were in accordance with his job responsibilities and, therefore, cannot be in opposition to the employer as they argue the “objects to” language requires. Defendants add that Ethicon heeded some of plaintiff’s recommendations while he was on the quality board, and that plaintiff never reported any of defendants’ putative violations to outside authorities. Defendants maintain that Ethicon terminated plaintiff’s employment because of his relationship with a subordinate, not as a retaliatory measure.

Second, in respect of the assertion that the Appellate Division’s holding is inconsistent with prior precedent, defendants point to Massarano, supra, where, according to defendants, an Appellate Division panel maintained that an employee who reports conduct as part of his or her job duties is not protected under CEPA. 400 N.J. Super. at 491. Defendants assert that six unpublished Appellate Division decisions and several federal district court cases follow the Massarano decision. Accordingly, defendants argue that Massarano and its progeny should have prevented the appellate panel in this matter from broadly reading CEPA to include job responsibilities as protected activity under the Act.

Finally, defendants advance a policy argument. They contend that the Appellate Division’s decision upsets the employee-employer balance between the scope of protected employee activity and the ability of employers to effectively run their businesses. Defendants rely on Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 71 (1980), for the proposition that protected activity should not interfere with a business’s internal operations. Defendants argue that the appellate holding in this case is at odds with that principle because it will interfere with employers’ ability to make lawful and justifiable personnel decisions about watchdog employees who make erroneous or overly conservative judgments. According to defendants, the Appellate Division’s decision in this matter creates a class of employees against whom an employer cannot take an adverse employment action without risking CEPA liability, and it incentivizes employers to no longer entrust employees with critical matters of legal compliance or public safety.

2.

In response to plaintiff’s cross-petition for certification, defendants continue to maintain that the Appellate Division erred in expanding the scope of protection under CEPA and further argue that plaintiff seeks to amplify that error by removing an essential element of whistleblowing, namely, showing that plaintiff objected by exhausting all internal means. Defendants urge this Court to adopt a construction of the “objects to” clause that will require watchdog employees to exhaustively escalate an issue when seeking to compel compliance with law or clear public policy in order for an employee’s conduct to be deemed protected activity under CEPA. Consistent with that position, defendants contend that the Appellate Division simply was tailoring the statute to the particular case, not imposing a higher burden on watchdog employees. They also contend that any reliance on Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90 (2000), is misplaced because that case did not analyze the language or scope of CEPA.

B.

1.

Plaintiff argues in support of the Appellate Division holding that CEPA-protected conduct can include the ordinary job duties of watchdog employees. Countering defendants’ three-prong argument, plaintiff first relies on the plain language of CEPA, which plaintiff asserts unambiguously extends protection to all employees and is silent on any job-duty exception when defining protected whistleblowing conduct. Plaintiff contends that the plain language best indicates the Legislature’s intent.

Second, plaintiff argues that the Appellate Division’s holding does not conflict with Massarano or its progeny. According to plaintiff, Massarano held that the plaintiff’s CEPA claim failed because she did not establish that she reasonably believed that her employer violated a clear mandate of public policy or that her employer acted with a retaliatory motive in terminating her employment. Plaintiff maintains that defendants’ misreading of Massarano stems from a single line of dictum that is taken out of context. Moreover, plaintiff is dismissive of Massarano’s “progeny” because those cases are unpublished and have no precedential value, are factually distinct, or fail to engage in a statutory analysis. Plaintiff also asserts that this Court already has declined to add a “job duties” exception to CEPA-protected conduct when it did not acknowledge such an exception in Donelson v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011).

Finally, in respect of defendants’ policy argument, plaintiff contends that the Appellate Division’s holding strikes the proper balance between employee protection and an employer’s effective running of its business. As plaintiff argues, watchdog employees protect employers from themselves by deterring employer wrongdoing. Moreover, plaintiff maintains that watchdog employees are often the only safeguard between profit-driven corporations and an unknowing public. Adopting a “job duties” exception, plaintiff argues, would weaken CEPA because watchdog employees would have no legal protections, thus eliminating the curb against “the corporate evils CEPA was intended to prevent.” According to plaintiff, a job-duties exception would unduly complicate CEPA claims by requiring factfinders to determine whether a plaintiff’s alleged protected conduct fell within his or her normal job duties.

2.

On the issue raised in his cross-petition, plaintiff argues that although the Appellate Division correctly interpreted the scope of CEPA to include watchdog employees, it erred in imposing a requirement that those employees must exhaust all internal means of compliance. Plaintiff asserts that such a requirement is inconsistent with the plain language of CEPA for the simple but forceful reason that the statute does not distinguish among types of employees.

Rather, plaintiff contends that the Legislature intended for CEPA to have a broad scope and to allow any whistleblower employee to bring a retaliation claim. He points to decisions of our Court to support that intention. Specifically, plaintiff argues that the panel’s new requirement violates this Court’s holding in Dzwonar, supra, 177 N.J. at 462, which established the elements for a prima facie case of retaliatory action under CEPA. Further, plaintiff maintains that the appellate panel’s added requirement for a watchdog employee to establish a prima facie CEPA claim is at odds with Fleming, supra, 164 N.J. at 97, wherein the Court rejected the argument that an employer could require an employee to exhaust the employer’s internal complaint procedure prior to qualifying for CEPA protection.

C.

Amici Employers Association of New Jersey (EANJ), Academy of New Jersey Management Attorneys (ANJMA), New Jersey Business & Industry Association and New Jersey Civil Justice Institute (collectively NJBIA), and the New Jersey Defense Association (NJDA) reinforce defendants’ argument that CEPA does not protect employees acting within the scope of their employment. We do not repeat their arguments except to note a few points.

EANJ emphasizes that employees should be required to respect the demands of the employer, unless those demands are unlawful. ANJMA argues in favor of a higher standard for watchdog employees to qualify for CEPA protection if they are to be eligible for such protection at all. NJBIA views the instant matter as presenting the question of whether CEPA protection should be expanded, which it argues should be an issue for the legislative branch, not the Judiciary. Finally, NJDA highlights federal and state laws regulating product liability and argues that compliance with those provisions requires exclusion of watchdog employees performing job duties from CEPA protection.

Amici New Jersey Association for Justice (NJAJ), as well as New Jersey Work Environment Council, New Jersey State Industrial Union Council, and twenty-five other environmental, labor, consumer, and community organizations (collectively NJWEC), support plaintiff’s contention that CEPA protects employees’ job responsibilities. We do not repeat all of their arguments either except to note the following.

NJWEC maintains that CEPA’s language of “objects to[] or refuses to participate in,” in the opening clause of N.J.S.A. 34:19-3(c), reinforces plaintiff’s position because an employee would never be expected to participate in an activity unless it fell within his or her job duties in the first place. It provides multiple textual and statutory construction bases for rejecting any exception for watchdog employees from CEPA protection under N.J.S.A. 34:19-3(c). NJWEC also cites to whistleblower statutes in other states that extend protections to watchdog employees. Further, NJWEC notes that the additional exhaustion requirement imposed on watchdog employees under the Appellate Division’s opinion exceeds the notice requirement to employees that the Legislature expressly imposed for other subsections of N.J.S.A. 34:19-3. NJAJ addresses defendants’ policy arguments — about the negative consequences of reading CEPA to protect the job duties of watchdog employees — by noting that those employees remain obligated to bear the burden of establishing a prima facie case of retaliatory action.

III.

In determining whether plaintiff is entitled to bring his CEPA cause of action or, conversely, whether defendants should be entitled to summary judgment based on their assertion that plaintiff is not entitled to whistleblower protection for performing his normal watchdog job duties, we must construe CEPA’s language. In addressing this question of the Act’s meaning, the appellate review is de novo. See Hodges v. Sasil Corp., 189 N.J. 210, 220-21 (2007) (citing Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999)).

The Legislature enacted CEPA in 1986. L. 1986, c. 105. The Act is considered remedial legislation entitled to liberal construction, its public policy purpose to protect whistleblowers from retaliation by employers having been long recognized by the courts of this State. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994);[4] see, e.g., Donelson, supra, 206 N.J. at 257-58 (noting CEPA’s liberal construction in light of its “broad remedial purpose”); Dzwonar, supra, 177 N.J. at 463 (quoting Abbamont, supra, 138 N.J. at 431) (same); Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 (2000) (quoting Barratt v. Cushman & Wakefield of N.J., Inc., 144 N.J. 120, 127 (1996)) (same). After nearly two decades of implementation, it is beyond dispute that the legislative purpose animating CEPA is, as expressed initially in Abbamont, supra, 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.” 138 N.J. at 431. We thus turn to the specific language of CEPA at issue in this matter.

N.J.S.A. 34:19-3 establishes that whistleblowing activity is protected from employer retaliation. In relevant part, it provides:

An employer shall not take any retaliatory action against an employee because the employee does any of the following [protected activities]:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, … or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

(2) is fraudulent or criminal …;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation…; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, … or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(2) is fraudulent or criminal …; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

[N.J.S.A. 34:19-3.]

An “employee” is defined in a separate section. An “employee” is “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b). There are no exceptions to that generic definition contained in the Act. Moreover, our case law has taken an inclusive approach in determining who constitutes an employee for purposes of invoking the protection provided through this remedial legislation. See D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 126-27 (2007) (extending CEPA protection, in furtherance of its remedial goals, to independent contractors through application of multi-factor test); see also Stomel v. City of Camden, 192 N.J. 137, 154-55 (2007) (applying D’Annunzio test in extending CEPA protection to legal professional serving as public defender); Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 241 (2006) (urging courts to examine nature of plaintiff’s relationship with party against whom CEPA claims are advanced rather than relying on labels); cf. Lowe v. Zarghami, 158 N.J. 606, 617-18 (1999) (noting appropriateness of use of relative-nature-of-the-work test to broaden employee status when public policy underlying social legislation “dictate[s] a more liberal standard” (citations omitted)).

To that statutory prescription of protected whistleblower activity for individuals who merit the designation of “employees” under CEPA, we add only the following general background law.

Prior to the Appellate Division’s consideration of the instant matter, our Court had identified, and reduced to a simple list, the necessary elements for a plaintiff to establish a prima facie claim under CEPA. See Dzwonar, supra, 177 N.J. at 462. Those four elements, which have not been altered to date, bear repeating. To establish a prima facie CEPA action, a plaintiff must demonstrate that:

(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;

(2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3(c);

(3) an adverse employment action was taken against him or her; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Ibid. (citations omitted); see also Winters v. N. Hudson Reg’l Fire & Rescue, 212 N.J. 67, 89 (2012) (quoting same).]

Against that backdrop, we turn to consider whether the Appellate Division correctly determined that plaintiff’s ability to proceed with his CEPA claim was improperly cut short by the trial court’s grant of summary judgment to defendants and dismissal of the action.

IV.

A.

1.

As the matter before us requires construction of a legislatively created cause of action, our job is to implement legislative intent. N.J. Dep’t of Children & Families v. A.L., 213 N.J. 1, 20 (2013) (citing Allen v. V & A Bros., Inc., 208 N.J. 114, 127 (2011)). In this instance, any fair analysis of CEPA’s scope must “begin … by looking at the statute’s plain language, which is generally the best indicator of the Legislature’s intent.” Donelson, supra, 206 N.J. at 256 (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

Starting with that plain language, by its very terms, CEPA does not define employees protected by the Act as inclusive of only those with certain job functions. An “employee” is “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b) (emphasis added). As noted, our case law has extended the reach of that definition, not restricted it. See D’Annunzio, supra, 192 N.J. at 126-27.

Certainly, no opinion from this Court has read into CEPA’s definition of an “employee” entitled to protection from retaliatory action under N.J.S.A. 34:19-2(b), any restriction to discrete classes of employees. To do so would seemingly contravene two principles of statutory construction. One is not to engraft language that the Legislature has not chosen to include in a statute. See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 596 (2012) (“We are charged with interpreting a statute; we have been given no commission to rewrite one.”). That principle has been invoked in the past when we have declined to add restrictive language to CEPA. See Donelson, supra, 206 N.J. at 261 (citing Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 323 (2009)). Another principle requires that, as remedial legislation, CEPA should be liberally construed. See Dzwonar, supra, 177 N.J. at 463 (citing Abbamont, supra, 138 N.J. at 431, for proposition that, as remedial legislation, CEPA should receive liberal construction to achieve “its important social goal[s]”); see generally D’Annunzio, supra, 192 N.J. at 120 (citing cases in support of that longstanding guiding principle instructing interpretation of CEPA).

There is simply no support in CEPA’s definition of “employee” to restrict the Act’s application and preclude its protection of watchdog employees. Defendants concede that point, but nevertheless press their argument that plaintiff’s claim should be dismissed because he is not entitled to protection under N.J.S.A. 34:19-3, which defines protected activity under CEPA. Their argument focuses on the Act’s description of protected activity in N.J.S.A. 34:19-3(c) — the “objects to” clause. Upon review, that argument is unpersuasive and the Appellate Division properly rejected it.

CEPA’s section that defines protected whistleblowing activity, N.J.S.A. 34:19-3, does not, on its face, expressly limit protection only to watchdog employees who object to conduct outside the scope of their job duties, as defendants argue. Instead, N.J.S.A. 34:19-3 begins broadly: “An employer shall not take any retaliatory action against an employee because the employee does any of the following….” It proceeds to set forth grounds for a CEPA claim in three circumstances. They are when the employee:

(1) “[d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer …,” N.J.S.A. 34:19-3(a);

(2) “[p]rovides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer …,” N.J.S.A. 34:19-3(b); or

(3) “[o]bjects to, or refuses to participate in any activity, policy or practice …,” N.J.S.A. 34:19-3(c).

Defendants focus on subsection (c)’s use of the verbs of “object[]” or “refuse[] to participate” in an activity. According to defendants, those verbs are ambiguous and implicitly indicate, in this context, that an employee must act outside of his or her prescribed duties to engage in protected whistleblowing activity. They reason that when an employee expresses disagreement with an employer’s action or proposed action within the context of his or her normal job duties, the employee is acting on behalf and in service of the employer; therefore, according to defendants, such an employee is not “[o]bject[ing] to, or refus[ing] to participate in an[] activity, policy or practice” of the employer as N.J.S.A. 34:19-3(c) requires. Defendants’ argument, in effect, would have this Court place an indirect limitation on the otherwise broad definition of an employee found in N.J.S.A. 34:19-2(b). It certainly is not directly stated as a limitation in N.J.S.A. 34:19-3(c).

However, the plain meaning of the word “object” does not support defendant’s argument in favor of an implicit requirement that employees must be acting outside the scope of their job duties in order to engage in CEPA-protected conduct under N.J.S.A. 34:19-3(c). See Donelson, supra, 206 N.J. at 256 (explaining that Court “must ascribe to the words used in CEPA their `ordinary meaning and significance'”). Webster’s II New Riverside University Dictionary defines “object” as: (1) “To hold or present an opposing view”; and (2) “To feel adverse to or express disapproval of something.” Webster’s II New Riverside University Dictionary 810 (1994). That meaning is neither ambiguous, nor indicative of a requirement that employees go beyond or contradict their job duties in order to “object[] to” an employer’s activity under subsection (c). In construing this remedial legislation, we have repeatedly instructed courts to give it a liberal reading. See D’Annunzio, supra, 192 N.J. at 120. It would be wholly incongruent to strain the normal definition of “object” into some implicit requirement that limits a class of employee to whistleblower protection only for actions taken outside of normal job duties. Yet that is precisely what defendants seek through their argument.

Although under subsection (c) the plaintiff must object or refuse to participate in an activity, whether the objection or refusal is part of his or her job responsibilities is not mentioned. There is no language in subsection (c) that hints that an employee’s job duties affect whether he or she may bring a CEPA claim. If anything, the corollary verbiage of “refuse[] to participate” in subsection (c) implies that CEPA-protected conduct can occur within the course of an employee’s normal job duties because it would be likely that the employee would be asked to participate in employer activity within the course of, or closely related to, his or her core job functions. Moreover, the fact that subsection (c)(1) expressly provides protection when “a licensed or certified health care professional” objects to or refuses to participate in employer activity that “constitutes improper quality of patient care” provides further indication that CEPA-protected conduct may occur in the course of one’s job duties: it would undoubtedly arise most frequently within a core job function of a medical doctor to object to or refuse to participate in employer conduct that he or she reasonably believes “constitutes improper quality of patient care.” N.J.S.A. 34:19-3(c)(1).

Attention to the overall structure of N.J.S.A. 34:19-3 further supports the conclusion that the “objects to” clause is not meant to exclude an employee’s normal job responsibilities. Neither subsection (a) nor subsection (b) state expressly, or suggest implicitly, that an employee must be acting outside of his or her usual duties to merit protection from retaliatory employer conduct. Defendants’ argument about the “objects to” language ignores subsections (a) and (b), and focuses instead on the “object” verb used exclusively in subsection (c). Read as a whole, it is inexplicable that the Legislature intended for subsection (c) to carry an implicit “job duties” exception that excludes watchdog employees, while the other subsections do not. See State v. Sutton, 132 N.J. 471, 479 (1993) (finding that court’s task is to harmonize individual sections and read statute in way that is most consistent with overall legislative intent).

In sum, examination of the Act’s text, structure, and remedial nature provides compelling evidence against finding a legislative intent to exclude watchdog employees from CEPA protection under N.J.S.A. 34:19-3(c).

2.

To the extent that defendants rely on Massarano, and the trial court found support in that decision for its grant of summary judgment in this matter, the argument is without solid foundation. In Massarano, supra, the motion court had granted summary judgment to the defendants, finding that no law, rule, regulation, or clear mandate of public policy had been violated. 400 N.J. Super. at 486-87. The motion court in that matter further held that there was no whistleblowing activity, determining that the “plaintiff was merely doing her job as the security operations manager by reporting her findings and her opinion to [a supervisor].” Id. at 491. Although the Massarano Appellate Division decision contains language that suggests that a plaintiff who reports conduct as part of his or her job is not entitled to protection under CEPA, the panel’s analysis is premised on the conclusion that the defendants did not retaliate against the plaintiff for reporting the disposal of the documents. Ibid. Defendants’ further argument that Massarano has been relied upon[5] as support for recognition of a job-duties exception to CEPA’s broad protection to employees is similarly unavailing. Any such reliance misperceives the case’s essential finding of no retaliation and results in an overextension of Massarano’s significance. Moreover, we specifically disapprove of any such extrapolation from the Massarano judgment.

Indeed, we note that decisions of this Court have indicated only a contrary approach to CEPA coverage for individuals in positions of responsibility for corporate compliance with law and public policy.

In Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), our Court’s decision upheld a cause of action under CEPA for a New Jersey employee who alleged that his employer retaliated against him for objecting to a violation of a clear mandate of public policy that threatened to harm citizens of Japan. Id. at 195-96. The plaintiff, Dr. Myron Mehlman, was a toxicologist who was Mobil’s director of toxicology as well as manager of its Environmental Health and Science Laboratory. Id. at 166, 168. Mehlman’s primary job responsibilities included “represent[ing] Mobil on toxicology matters, and provid[ing] toxicologic and regulatory advice for prudent business decisions.” Id. at 168. (alterations in original) (internal quotation marks omitted). While representing Mobil at an international symposium in Japan, Mehlman learned that the benzene content of the gasoline at Mobil’s Japanese subsidiary was too high. Id. at 169. Mehlman so informed the Japanese managers and proceeded to insist that the levels were dangerous and had to be reduced. Ibid. Upon returning from Japan, Mehlman was placed on indefinite special assignment and subsequently fired, allegedly because of a conflict of interest between his responsibilities to Mobil and his activities on behalf of his wife’s company. Id. at 170-71.

We had no hesitancy in recognizing that a cause of action existed under CEPA based on the fact that “the employee objected to a practice that he reasonably believed was incompatible with a clear mandate of public policy designed to protect the public health and safety of citizens of another country.” Id. at 165. Our decision specifically noted that Mehlman’s responsibilities were “broad and of international scope,” and included “approval of protocols for and monitoring quality of toxicity testing” and “informing Mobil of pending developments in toxicology regulations that could affect Mobil’s worldwide business.” Id. at 168. None of those factors were ever regarded as disqualifying the plaintiff from advancing a CEPA claim.

Similarly, in Estate of Roach, supra, we addressed a scenario involving a plaintiff who was the manager of the defendant’s Business Ethics and Conduct Program and who was substantially involved in implementing the company’s code of conduct, which required employees to report possible code-of-conduct violations. 164 N.J. at 602-03. After attempting to report possible violations, the plaintiff was discharged from employment. Id. at 604-06. Our judgment upheld the jury’s CEPA verdict in favor of the plaintiff, and in our decision we pointed to “the numerous improprieties alleged” by the plaintiff against co-workers, the defendant company’s “sensitive position as a federal defense contractor,” and the existence of a code of conduct that required “strict compliance” for employees of the company. Id. at 613.

In conclusion, we find no support in CEPA’s language, construction, or application in this Court’s case law that supports that watchdog employees are stripped of whistleblower protection as a result of their position or because they are performing their regular job duties. We therefore affirm the Appellate Division’s judgment in this matter that reversed the grant of summary judgment to defendants.

B.

Having agreed with the Appellate Division that watchdog employees are entitled to CEPA protection when performing their ordinary job duties, we turn to the panel’s reformulation of the elements for such a cause of action when brought by such employees. The panel followed the Dzwonar paradigm for establishing a CEPA cause of action, but added a caveat, as follows:

[T]he employee must establish that he or she refused to participate or objected to this unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply. To be clear, this second element requires a plaintiff to show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.

[Lippman, supra, 432 N.J. Super. at 410.]

Although we do not doubt its intent to be helpful by adding clarity to the proofs required for a watchdog employee’s CEPA cause of action under N.J.S.A. 34:19-3(c), whose verbiage the panel tracked, we are compelled to disapprove of the panel’s formulation. Simply put, the panel has added to the burden required for watchdog employees to secure CEPA protection under subsection (c) by including an obligation nowhere found in the statutory language.

For the same reasons cited earlier, courts should not rewrite plainly worded statutes. It is not our job to engraft requirements to a CEPA cause of action under subsection (c) that the Legislature did not include. It is our role to enforce the legislative intent as expressed through the words used by the Legislature. In subsection (c), there is no exhaustion requirement.

By way of contrast, where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Through N.J.S.A. 34:19-4, the Legislature has required prior notice to the employer and opportunity to correct the activity, policy, or practice, in order for a putative whistleblower plaintiff to obtain protection against retaliatory action for disclosure made to a public body. Thus, a whistleblower plaintiff pursuing a cause of action based on disclosure to a public body under subsection (a) or (b) must demonstrate compliance with N.J.S.A. 34:19-4’s particular exhaustion requirement. The legislative silence on any such requirement applicable to actions brought under subsection (c) is deafening.

Besides lacking support from CEPA’s text, the requirement imposed by the panel is incompatible with Fleming, supra. 164 N.J. at 97 (rejecting argument that employer may insist on exhaustion of internal complaint procedures for employee to be eligible for CEPA protection). And, as one amicus rightfully pointed out, the exhaustion requirement imposed by the Appellate Division exceeds the obligation expressly imposed by the Legislature under N.J.S.A. 34:19-4, which requires only notice and opportunity to correct.

For all the above reasons, we modify the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by the statute’s terms. We hold that CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim unless and until the Legislature expresses its intent that such employees meet a special or heightened burden.

V.

The judgment of the Appellate Division is affirmed, as modified. The matter is remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUDGE CUFF (temporarily assigned) did not participate.

[1] We refer to this concept in various ways — including regular, normal, and usual job duties; prescribed duties; and core job functions — as defendants have in this matter.

[2] Plaintiff has a bachelor’s degree in biology from New York University, a medical degree from New York Medical College, and a master’s degree in public health from Harvard University School of Public Health.

[3] Plaintiff also alleged that he was terminated because of his age, in violation of the Law Against Discrimination, N.J.S.A. 10:5-12(a); however, he voluntarily dismissed that claim after the trial court granted defendants’ motion for summary judgment on plaintiff’s CEPA claim.

[4] As explained in Abbamont, supra, CEPA is entitled to liberal construction, in part stemming from subsequent legislative commentary indicating that CEPA’s remedies were meant to be so construed. 138 N.J. at 431 (citing Judiciary, Law & Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990)).

[5] Defendants cite to unpublished decisions that ostensibly have relied on Massarano for such a position. Unpublished opinions have no precedential value and are not to be cited in argument to the courts of this State pursuant to the Court Rules. See R. 1:36-3.

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Employee report of drunk driving does not come within Washington wrongful discharge statute

Cudney v. Alsco, 259 P.3d 244 (2011)

An employee reported a supervisor had been driving while intoxicated and the employee was fired about 2 months later.  The Washington court rejected his claim for wrongful discharge.

OWENS, J.

¶ 1 This case allows us to consider whether the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, and Washington’s laws prohibiting driving while under the influence (DUI) are inadequate to promote the public policies underlying them. Matthew Cudney, whose employment was terminated by ALSCO Inc., asserted a claim in federal court for wrongful discharge in violation of public policy. Cudney alleges that he was terminated in retaliation for reporting that a managerial employee drove a company vehicle during business hours while that employee was intoxicated. The United States District Court for the Eastern District of Washington certified to us the following questions:

QUESTION NO. 1: Does the Washington Industrial Safety and Health Act (WISHA), in particular RCW 49.17.160, and accompanying Washington Administrative Code (WAC) regulations (WAC 296-360-005 et seq. and WAC 296-800-100 et seq.), adequately promote the public policy of insuring workplace safety and protecting workers who report safety violations so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy?

QUESTION NO. 2: Do the DUI laws of the State of Washington, in particular RCW 9.91.020, RCW 46.61.504, and RCW 4[6].61.502, adequately promote the public policy of protecting the public from drunken drivers so as to preclude a separate claim by a terminated employee for wrongful discharge in violation of public policy?

Certification to Wash. State Supreme Court at 3-4 (Certified R. Doc. 30). In response, we hold that both WISHA and our state’s DUI laws adequately promote the stated public policies.

FACTS

¶ 2 In April 2004, ALSCO hired Cudney as the service manager of its Spokane branch. During his tenure at ALSCO, Cudney made numerous complaints to his supervisor about the alcohol use of John Bartich, the Spokane branch’s general manager. On June 10, 2008, Cudney observed that Bartich appeared to be intoxicated at work. He noted that Bartich was weaving back and forth, had slurred speech and glazed eyes, and smelled of alcohol. Cudney then observed Bartich drive away in a company vehicle. Cudney reported his observations to the assistant general manager and to the human resources manager. On August 5, 2008, Cudney was terminated from his job.

¶ 3 Cudney brought an action in the Spokane County Superior Court for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for 246*246 reporting Bartich’s drinking and driving. Cudney asserts that WISHA and Washington’s DUI laws are two sources of public policy that prohibit the termination of his employment.

¶ 4 ALSCO removed the case to federal district court and filed a motion for partial summary judgment. The United States District Court for the Eastern District of Washington found that this court has not clearly determined whether these two sets of laws constitute inadequate means of promoting Washington’s public policies. Accordingly, it certified the questions above, asking whether WISHA and the DUI laws adequately promote their respective public policies. For purposes of this certification, Cudney and ALSCO agree that WISHA and its accompanying regulations establish a clear public policy of ensuring worker safety and protecting workers who report safety violations from retaliation. Cudney and ALSCO also agree that Washington’s DUI laws embody a clear public policy of protecting the public from drunk drivers.

STANDARD OF REVIEW

¶ 5 “RAP 16.16 allows this court to determine questions of law certified by a federal court if the question is one of state law that has `not been clearly determined and does not involve a question determined by reference to the United States Constitution.'” United States v. Hoffman, 154 Wash.2d 730, 736, 116 P.3d 999 (2005) (quoting RAP 16.16(a)). The question of whether adequate alternative means for promoting a public policy exist presents a question of law as long as “the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.” Korslund v. Dyn-Corp Tri-Cities Servs., Inc., 156 Wash.2d 168, 182, 125 P.3d 119 (2005).

ANALYSIS

¶ 6 Absent a definite contract, employment relationships are generally terminable at will. Sedlacek v. Hillis, 145 Wash.2d 379, 385, 36 P.3d 1014 (2001). This court has recognized, however, “that the tort of wrongful discharge in violation of public policy is a narrow exception to the employment at-will doctrine.” Id.

¶ 7 To prevail on a wrongful discharge claim, a plaintiff must satisfy a four-factor test. Gardner v. Loomis Armored Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996) (citing HENRY H. PERRITT, JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES § 3.1 (1991)). Specifically, the plaintiff must show: (1) “the existence of a clear public policy (the clarity element)”; (2) “that discouraging the conduct in which [he] engaged would jeopardize the public policy (the jeopardy element)”; (3) “that the public-policy-linked conduct caused the dismissal (the causation element)”; and, finally, (4) that “[t]he defendant [has not] offer[ed] an overriding justification for the dismissal (the absence of justification element).” Id. These elements are conjunctive, meaning that all four elements must be proved. Ellis v. City of Seattle, 142 Wash.2d 450, 459, 13 P.3d 1065 (2000).

¶ 8 From this court’s first recognition of the tort of wrongful discharge in Thompson v. St. Regis Paper Co., we emphasized that “`courts should proceed cautiously.'” 102 Wash.2d 219, 232, 685 P.2d 1081 (1984) (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982)). In Thompson, the court was specifically referencing the importance of exercising caution in identifying public policy. Our admonishment to “proceed cautiously” applies with as much force to the jeopardy element as it does to the clarity element because when Thompson was decided this court treated the two elements together. See Gardner, 128 Wash.2d at 941, 913 P.2d 377. We have since confirmed that “[t]his court has always been mindful that the wrongful discharge tort is narrow and should be `applied cautiously.'” Danny v. Laidlaw Transit Servs., Inc., 165 Wash.2d 200, 208, 193 P.3d 128 (2008) (quoting Sedlacek, 145 Wash.2d at 390, 36 P.3d 1014).

¶ 9 The only element we must decide now is the “jeopardy” element;[1] that is, 247*247 whether current laws and regulations provide an adequate means of promoting the public policies of ensuring workplace safety, protecting against retaliation for reporting safety violations, and protecting the public from the dangers of drinking and driving. In order to establish the jeopardy element, a plaintiff must show that other means of promoting the public policy are inadequate, Hubbard v. Spokane County, 146 Wash.2d 699, 713, 50 P.3d 602 (2002), and that the actions the plaintiff took were the “only available adequate means” to promote the public policy. Danny, 165 Wash.2d at 222, 193 P.3d 128. Since Gardner, this court has repeatedly applied this strict adequacy standard, holding that a tort of wrongful discharge in violation of public policy should be precluded unless the public policy is inadequately promoted through other means and thereby maintaining only a narrow exception to the underlying doctrine of at-will employment. See Gardner, 128 Wash.2d at 945, 913 P.2d 377; Hubbard, 146 Wash.2d at 713, 50 P.3d 602; Korslund, 156 Wash.2d at 181-82, 125 P.3d 119; Danny, 165 Wash.2d at 222, 193 P.3d 128.

¶ 10 In effect Cudney argues for the expansion of the “wrongful discharge against public policy” tort when he asks to proceed despite the existence of hardy statutory remedies that protect the relevant public policies. We decline to do this because we find that, applying the adequacy analysis of the jeopardy element, Cudney cannot show that WISHA or the DUI laws are inadequate to protect public policy.

  1. WISHA

¶ 11 The protections provided by WISHA are adequate to promote the public policies of ensuring workplace safety and protecting workers who report safety violations. The purpose of WISHA is to make workplace conditions as safe and healthful as possible. RCW 49.17.010. WISHA requires every person who has employees to (1) “furnish each of his or her employees employment and a place of employment free from recognized hazards that are causing or [are] likely to cause death or serious physical harm,” and (2) “comply with industrial safety and health standards promulgated under WISHA.” WAC 296-360-010(1). In support of these objectives, WISHA also provides a remedy for employees who believe they have been discharged for reporting workplace safety concerns. RCW 49.17.160.

¶ 12 WISHA’s retaliation statute provides extensive protections to employees who claim that they suffered retaliation for filing complaints related to workplace safety. See id. First, the statute provides that an employee may not be discharged for filing a complaint, testifying in any proceeding, or exercising any right discussed in WISHA. RCW 49.17.160(1). Next, the statute sets out a procedure by which any employee who believes that he or she has been terminated in violation of WISHA can file a complaint within 30 days to the director of the Department of Labor and Industries (L & I). RCW 49.17.160(2). The statute then requires the director to investigate any appropriate claim, and, if the investigation supports the employee’s claim, the director is required to bring suit against the person who violated the statute. Id. If the director does not believe that a violation has occurred, the employee is allowed to bring a suit himself or herself within 30 days of the director’s determination. Id. The statute requires superior courts to order all appropriate relief for cause shown. Id. Finally, the available relief is not limited to rehiring or reinstatement with back pay; these are merely examples of what types of relief could be granted. Id.

¶ 13 The controlling case, governing whether statutory remedies are adequate to promote a given public policy, is Korslund, where two plaintiffs claimed they were wrongly terminated by DynCorp for reporting safety violations, fraud, and mismanagement at the Hanford Nuclear Reservation. 156 Wash.2d at 172-73, 125 P.3d 119. We found that the federal Energy Reorganization Act of 1974(ERA), 42 U.S.C. § 5851, was 248*248 a clear mandate of public policy that was “intended to protect the health and safety of the public and to protect against waste and fraud in nuclear industry operations.” 156 Wash.2d at 181, 125 P.3d 119. We also found that “[t]he ERA provides an administrative process for adjudicating whistleblower complaints and provides for orders to the violator to `take affirmative action to abate the violation’; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions of employment; back pay; compensatory damages; and attorney and expert witness fees.” Id. at 182, 125 P.3d 119 (quoting 42 U.S.C. § 5851(b)(2)(B)). We therefore concluded that the ERA provided comprehensive remedies that served to protect public policy and that the plaintiffs’ claims for wrongful discharge in violation of public policy failed as a matter of law. Id. at 182-83, 125 P.3d 119. The ERA serves as a guidepost by which we can measure WISHA to see if it is adequate to protect the public policy of workplace safety and protection of workers who report safety violations.

¶ 14 Both WISHA and the ERA allow an administrative agency to perform investigations and determine whether a valid claim has been filed. RCW 49.17.160(2); 42 U.S.C. § 5851(b)(2)(A), (B), (b)(3)(A). Both WISHA and the ERA allow plaintiffs to bring claims of their own if the administrative agency does not take action. RCW 49.17.160(2); 42 U.S.C. § 5851(b)(4). Finally, under the ERA, if the secretary determines that a violation has occurred, “the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant.” 42 U.S.C. § 5851(b)(2)(B). Under WISHA, in contrast, the superior court has the power to order all appropriate relief, including rehiring or reinstatement of the employee with back pay. RCW 49.17.160(2). While it is true that WISHA does not spell out the possible relief in as much detail as the ERA does, the ERA also limits relief to certain specific categories, while WISHA simply orders the superior court to grant all relief that is appropriate, whatever that may be. In that sense, WISHA is actually more comprehensive than the ERA and is more than adequate.

¶ 15 Cudney particularly argues that the 30-day deadline in WISHA for filing a complaint with the director renders the WISHA remedy inadequate to protect public policy. Cf. Hubbard, 146 Wash.2d at 717, 50 P.3d 602.[2] In Hubbard, we held that an administrative procedure was inadequate to promote the public policies of uniform planning and general safety and welfare where aggrieved citizens had to receive notice of a zoning decision and make an appeal to a board of adjustment within 20 days. Id. We stated that this would mean it was “up to chance whether the public policy was enforced.” Id. Hubbard is easily distinguished from the case at hand. Unlike in zoning actions, where aggrieved citizens very well might not receive notice within 20 days, employees will almost always receive immediate notice of their own termination. And in a case of retaliation under WISHA, an employee will know that he or she recently raised a safety concern. Then, the employee claiming wrongful termination need only file a complaint with L & I within 30 days, at which point L & I itself shall conduct an appropriate investigation. RCW 49.17.160(2). This gives the employee significant additional time over 30 days to prepare a case in the event 249*249 that L & I declines to pursue the matter.[3] Importantly, the 30-day deadline is not a strict time bar. “There may be circumstances. . . that justify tolling the thirty-day period on recognized equitable principles or because strongly extenuating circumstances exist, e.g., where the employer has concealed, or misled the employee regarding the grounds for, discharge or other adverse action.” WAC 296-360-030(4). The 30-day deadline therefore does not make the statutory remedy inadequate. Cudney has asserted no reason why he was unable to file a claim within 30 days. He could have filed his complaint the very moment he was terminated or requested tolling of the 30-day time period if there was reason for his delay.

¶ 16 Our decisions in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wash.2d 46, 821 P.2d 18 (1991), and Ellis do not alter our analysis. It is true that in Wilmot we held that a statute (RCW 51.48.025) similar to RCW 49.17.160 was not the mandatory and exclusive remedy for an employee who was allegedly terminated for filing a workers’ compensation claim. Id. at 51, 65, 821 P.2d 18. While we did briefly mention the comprehensiveness and adequacy of the statute, id. at 61, 821 P.2d 18, we focused primarily on whether the statute was mandatory and exclusive. Our decision in Wilmot preceded our enumeration of the four-part Gardner test by five years. Since then, we have consistently said that a plaintiff must show that other means of promoting the public policy are inadequate. See Gardner, 128 Wash.2d at 945, 913 P.2d 377; see also Hubbard, 146 Wash.2d at 713, 50 P.3d 602; Korslund, 156 Wash.2d at 181-82, 125 P.3d 119; Danny, 165 Wash.2d at 222, 193 P.3d 128.

¶ 17 We pointed out in Korslund that Wilmot and Korslund addressed two entirely separate issues. In Wilmot, the issue was whether the legislature intended RCW 51.48.025 to be mandatory and exclusive, thus precluding a tort cause of action for violation of public policy. Korslund, 156 Wash.2d at 183, 125 P.3d 119. The key question in Korslund was, in contrast, “whether other means of protecting the public policy [were] adequate so that recognition of a tort claim in these circumstances [was] unnecessary to protect the public policy.” Id. In fact, Korslund specifically found that statutory remedies were adequate to protect the public policy, even though the United States Supreme Court has found that the same statute was not mandatory and exclusive. Id. at 182-83, 125 P.3d 119. Our analysis here should follow our reasoning in Korslund. Even if a similar statute is not mandatory and exclusive, as in Wilmot, WISHA is still adequate to protect public policy. Wilmot is simply not on point.

¶ 18 In Ellis, we addressed whether it was appropriate for a trial court to issue summary judgment against a plaintiff who was allegedly terminated for refusing to follow improper procedure and filing a WISHA claim. 142 Wash.2d at 457-58, 13 P.3d 1065. The question presented by that case was whether a plaintiff had to prove that the employer’s conduct would actually violate public policy or whether the plaintiff merely had to have a reasonable belief that the employer’s actions violated the law. Id. at 460, 13 P.3d 1065. We held that “the jeopardy prong of the Gardner test may be established if an employee has an objectively reasonable belief the law may be violated in the absence of his or her action.” Id. at 461, 13 P.3d 1065. In Ellis, we simply did not address whether WISHA adequately promoted public policy, as we necessarily only decided the questions presented by the parties. The issue of WISHA’s adequacy is now squarely before us, and we disapprove of any implication in either Wilmot or Ellis that public 250*250 policy is not adequately promoted by WISHA.

¶ 19 In light of Korslund and our other post-Gardner cases outlining the adequacy standard of the jeopardy element, we do not find that the robust statutory remedies available in WISHA are inadequate to protect the underlying public policies of worker safety and protection of workers from retaliation for raising safety concerns. Accordingly, we answer the first certified question affirmatively: WISHA and its accompanying regulations adequately protect the identified public policies.

1 DUI Laws

¶ 20 Washington has a series of laws criminalizing driving while under the influence of alcohol. RCW 46.61.502, .504. RCW 46.61.5055 sets out the penalties for these criminal offenses, which include a mandatory jail sentence, a $5,000 fine, suspension or revocation of one’s driver’s license, and the installation of an ignition interlock device. Social penalties can also adhere, such as the loss of status in the community and possible suspension or termination at work. While drinking and driving remains a social problem, it does not necessarily follow that the laws in place are an inadequate means to address the problem.

¶ 21 For Cudney to succeed in this claim, he must prove that telling his manager about Bartich’s drunk driving is the “only available adequate means” to promote the public policy of protecting the public from drunk driving.[4] Danny, 165 Wash.2d at 222, 193 P.3d 128. For this to be true, the criminal laws, enforcement mechanism, and penalties all have to be inadequate to protect the public from drunk driving. Cudney admits that he did not call 911 and inform the police of Bartich’s drunk driving. Police and state troopers patrol our roads and highways looking for signs of driving under the influence. There is a huge legal and police machinery around our state designed to address this very problem. It is very hard to believe that the “only available adequate means” to protect the public from drunk driving was for Cudney to tell his manager about Bartich’s drunk driving. Id.

¶ 22 Cudney’s reporting drinking and driving to his employer is a roundabout remedy that is highly unlikely to protect the public from the immediate problem of a drunk driver on its roads. This is different from Hubbard, where we noted that it is important to protect employees against retaliation when they speak up before violations of public policy occur so that the violations can be prevented altogether. See 146 Wash.2d at 717, 50 P.3d 602. Hubbard was an employee of the Spokane County Planning Department, and he reported concerns about zoning violations to his direct supervisor, a decision maker on zoning issues. Id. at 703, 50 P.3d 602. By speaking up, Hubbard could actually stop the alleged public policy violation. That is not the case here with a DUI report to an employment supervisor with no law enforcement capability. Under a strict adequacy analysis, Cudney simply cannot show that having law enforcement do its job and enforce DUI laws is an inadequate means of promoting the public policy. See Korslund, 156 Wash.2d at 181-82, 125 P.3d 119.

¶ 23 Finally, we must remember that it is the public policy that must be promoted, not Cudney’s individual interests. “The other means of promoting the public policy need not be available to a particular individual so long as the other means are adequate to safeguard the public policy.” Hubbard, 146 Wash.2d at 717, 50 P.3d 602. Cudney has not shown that the current DUI laws are an 251*251 inadequate means of promoting the public policy, so his claim fails.

CONCLUSION

¶ 24 This court has long used the adequacy standard, finding, under the jeopardy element of our four-part Gardner analysis, that a tort of wrongful discharge in violation of public policy can proceed only when other remedies are inadequate. Accordingly, we answer the federal court’s certified questions by holding that Washington’s public policies of (1) promoting workplace safety and protecting workers who report safety violations and (2) protecting the public from drunk drivers are adequately promoted by WISHA and Washington’s DUI laws, respectively.

WE CONCUR: BARBARA A. MADSEN, Chief Justice, GERRY L. ALEXANDER, MARY E. FAIRHURST, and JAMES M. JOHNSON, Justices.

STEPHENS, J. (dissenting).

¶ 25 The majority would close the door on a common law cause of action for wrongful discharge in violation of public policy whenever the statute that announces a clear mandate of public policy also provides some means to protect that public policy. This result departs from long-standing precedent in Washington. Moreover, it transforms the jeopardy prong of the public policy tort analysis from its proper role as a tool to evaluate the close relationship between a tort claim and the furtherance of public policy into an automatic rule of exclusion. I respectfully dissent.

ANALYSIS

¶ 26 This court first recognized a cause of action under the common law for wrongful discharge in violation of a clear mandate of public policy in the landmark case of Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). In cases following Thompson we acknowledged public policy tort claims generally arise in four areas: “(1) where the discharge was a result of refusing to commit an illegal act, (2) where the discharge resulted due to the employee performing a public duty or obligation, (3) where the [discharge] resulted because the employee exercised a legal right or privilege, and (4) where the discharge was premised on employee `whistleblowing’ activity.” Dicomes v. State, 113 Wash.2d 612, 618, 782 P.2d 1002 (1989) (citations omitted).

¶ 27 In Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377 (1996), the court adopted the analytical framework set forth in a leading treatise to assess when an employee may recover for wrongful discharge in violation of public policy. See Henry H. Perritt Jr., Workplace Torts: Rights and Liabilities § 3.1 (1991). This test examines (1) the existence of a “clear public policy” (“clarity” element), (2) whether “discouraging the conduct in which [the employee] engaged would jeopardize the public policy” (“jeopardy” element), (3) whether the “public-policy-linked conduct caused the [discharge]” (“causation” element), and (4) whether the employer is “able to offer an overriding justification for the [discharge]” (“absence of justification” element). Gardner, 128 Wash.2d at 941, 913 P.2d 377. Here, only the jeopardy element is at issue.

¶ 28 Before we adopted Perritt’s four-part test, our decisions tended to “lump[] the clarity and jeopardy elements together . . . .” Id.; see also Dicomes, 113 Wash.2d at 617, 782 P.2d 1002 (“[T]he employee has the burden to show that the discharge contravened a clear mandate of public policy.”). By parsing out these two related but conceptually distinct concepts, this court in Gardner sought to achieve “a more consistent analysis.” Gardner, 128 Wash.2d at 941, 913 P.2d 377. And in doing so, we made clear that “our adoption of this test does not change the existing common law in this state.” Id.

¶ 29 Describing the jeopardy element, we explained it serves to “guarantee[] an employer’s personnel management decisions will not be challenged unless a public policy is genuinely threatened.” Id. at 941-42, 913 P.2d 377 (emphasis added). Also, we articulated the requisite showing a plaintiff must make in order to establish jeopardy:

To establish jeopardy, plaintiffs must show they engaged in particular conduct, and the conduct directly relates to the public 252*252 policy, or was necessary for the effective enforcement of the public policy. This burden requires a plaintiff to “argue that other means for promoting the policy . . . are inadequate.” Perritt[, supra] § 3.14, at 77. Additionally, the plaintiff must show how the threat of dismissal will discourage others from engaging in the desirable conduct.

Id. at 945, 913 P.2d 377 (first alteration in original) (internal citation omitted).

¶ 30 This language is a paraphrase of Perritt’s treatise (1991), which clearly states the jeopardy analysis in the disjunctive, i.e., the conduct furthers public policy either because the policy directly promotes the conduct or because the conduct is necessary to effective enforcement of the policy. PERRITT, supra § 3.14, at 75-76. The certified questions in this case present a direct relationship claim under the public policy of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, and a necessity-type claim under the public policy of the laws on driving while under the influence of alcohol (DUI).

WISHA

¶ 31 The Washington legislature enacted WISHA in 1973. It was designed to complement the federal Occupational Safety and Health Act of 1970 (OSHA), and shares with OSHA the purpose of promoting workplace safety. 29 U.S.C. §§ 667(c), 651(b); RCW 49.17.010. WISHA requires every employer to (1) “furnish each of his or her employees employment and a place of employment free from recognized hazards that are causing or [are] likely to cause death or serious physical harm” and (2) “comply with industrial safety and health standards promulgated under WISHA.” WAC 296-360-010(1). WISHA also contains an antidiscrimination provision which, inter alia, provides:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter.

RCW 49.17.160(1).

¶ 32 This statute sets forth procedures by which an employee who believes that he or she has been discharged in violation of WISHA may file a complaint. RCW 49.17.160(2). The complaint must be filed with the director of the Washington State Department of Labor and Industries (L & I) within 30 days. Id. Upon receipt of the complaint, the director must cause an investigation to be conducted. Id. If the director determines that the investigation supports the employee’s claim, the director is required to bring suit against the employer who violated the statute. Id. If the director does not believe that a violation has occurred, the employee must bring suit on his or her own behalf within 30 days. Id. The director must notify the employee of the decision within 90 days of the initial filing of the complaint. RCW 49.17.160(3).

¶ 33 Cudney alleges his employment was terminated for reporting workplace safety concerns under WISHA and that allowing an employee to be fired in such instances directly discourages the very conduct that WISHA promotes. I would hold that this claim satisfies the jeopardy prong of the wrongful termination analysis.

¶ 34 Washington has long recognized claims for wrongful discharge in violation of public policy premised on state workplace protection laws, including WISHA. See Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 821 P.2d 18 (1991) (recognizing claim for retaliation for filing workers’ compensation claim and disapproving contrary WISHA case); Ellis v. City of Seattle, 142 Wash.2d 450, 13 P.3d 1065 (2000) (recognizing claim for retaliation for making WISHA complaint); Wilson v. City of Monroe, 88 Wash.App. 113, 943 P.2d 1134 (1997) (same; holding RCW 49.17.160 does not provide adequate, exclusive remedy); Roberts v. Dudley, 140 Wash.2d 58, 993 P.2d 901 (2000) (recognizing claim under RCW 49.12.200 and Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW); Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 253*253 (1990) (recognizing claim under WLAD). The majority does not overrule these cases, which build on Thompson’s recognition that the public policy tort claim is an important, though narrow, exception to the terminable at will doctrine. See Thompson, 102 Wash.2d at 231-33, 685 P.2d 1081. Washington adopted this exception “because it properly balances the interest of both employer and employee,” as well as advances public policy. Id. at 232, 685 P.2d 1081.

¶ 35 Notably, in some cases involving public policy tort claims, the question was whether a plaintiff who had no statutory cause of action could nonetheless bring a wrongful discharge claim premised on the public policy of the statute. See Roberts, 140 Wash.2d at 77, 993 P.2d 901; Bennett, 113 Wash.2d at 929, 784 P.2d 1258; cf. Ellis, 142 Wash.2d at 461, 13 P.3d 1065 (noting, “Ellis is not required to prove an actual WISHA violation. All he has to do is prove the City terminated him for making a WISHA complaint.” (citing Wilson, 88 Wash.App. 113, 943 P.2d 1134)). The starting premise of these cases is that there can be no doubt about the existence of a public policy tort claim when the plaintiff is in fact protected by the statutory remedies. It would turn this premise on its head to suggest that the existence of statutory remedies instead precludes a public policy tort claim.

¶ 36 Wilmot is particularly instructive. That case involved a discrimination provision of the Industrial Insurance Act, chapter 51 RCW, virtually identical to the WISHA provision implicated in this case. Wilmot, 118 Wash.2d at 55, 821 P.2d 18. In describing the issue before the court, we said:

In enacting RCW 51.48.025, the Legislature expressly set out the clear mandate of public policy giving rise to the exception to the employment at will doctrine. We must decide whether that public policy supports an independent tort action even though the statute sets out a remedy for violation of the statute. We have referred to this type of question twice before, that is, “whether a cause of action exists for wrongful discharge in violation of public policy when the declaration of public policy is declared in a statute already providing a remedy.”

Id. at 54, 821 P.2d 18 (quoting Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 367, 753 P.2d 517 (1988) and citing Bennett, 113 Wash.2d at 925, 784 P.2d 1258). Given this language, I fail to understand how the majority can accept ALSCO’s position, based solely on language in Korslund v. DynCorp Tri-Cities Services, Inc., 156 Wash.2d 168, 183, 125 P.3d 119 (2005), that this case and Wilmot involve two entirely separate issues. ALSCO’s Resp. Br. at 31-32.[1]

¶ 37 Wilmot in fact considered the adequacy of the relevant statutory remedies in its analysis, noting, “it is not simply the presence or absence of a remedy which is significant; rather, the comprehensiveness, or adequacy, of the remedy provided is a factor which courts and commentators have considered in deciding whether a statute provides the exclusive remedies for retaliatory discharge in violation of public policy.” 118 Wash.2d at 61, 821 P.2d 18. Moreover, the court in Wilmot recognized that its holding implicated WISHA because it expressly disapproved of Jones v. Industrial Electric-Seattle, Inc., 53 Wash.App. 536, 768 P.2d 520 (1989) (holding that statutory remedy under WISHA, RCW 49.17.160, precludes wrongful discharge public policy claim). See Wilmot, 118 Wash.2d at 66, 821 P.2d 18.

¶ 38 The majority seems to suggest that Wilmot is outdated given our subsequent refinement of the public policy tort analysis into the four-part Perritt test in Gardner. ALSCO’s Resp. Br. at 30 n. 3; Majority at 248-49. But this characterization of Wilmot fails to account for Ellis, which confirmed the same reasoning several years after Gardner. The plaintiff in Ellis alleged that he was terminated in retaliation for filing a WISHA complaint against his employer. He “sued 254*254 the City alleging two causes of action, wrongful termination based on public policy, relying on Gardner, and retaliatory discharge in violation of RCW 49.17.160(1) stemming from his L & I complaint.” Ellis, 142 Wash.2d at 457, 13 P.3d 1065 (citation omitted). We held that both claims could go forward. In the course of our analysis we expressly addressed the jeopardy prong and held that the Court of Appeals erred by concluding as a matter of law that Ellis’s conduct was not necessary to enforce the public policy at issue. Id. at 462-64, 13 P.3d 1065. Our analysis echoed the view of Professor Perritt that “public policy tort cases involving employee reports of employer misconduct to outside agencies present relatively strong arguments on the jeopardy element, because of the likelihood that agencies charged with public policy enforcement depend on such reports.” PERRITT, supra § 3.34, at 117. Thus, had we intended to reject a public policy tort claim premised on WISHA because we viewed the test from Thompson somewhat differently in the intervening years between Wilmot and Gardner, Ellis gave us that opportunity. Instead of rejecting this claim under the jeopardy prong, we solidified its existence. This court in Ellis cited with approval the leading Court of Appeals case recognizing RCW 49.17.160 as the basis for a public policy tort claim notwithstanding the availability of remedies under the statute. 142 Wash.2d at 461, 13 P.3d 1065 (citing Wilson, 88 Wash.App. 113, 943 P.2d 1134). Notably, the agency charged with implementing WISHA does not believe that it precludes a public policy tort claim. L & I filed an amicus brief in this case in support of Cudney. This brief cautions that, because we have consistently recognized a tort claim based on the WISHA antidiscrimination statute, we should not revisit that issue absent a change in statute. Br. of Amicus Curiae Dep’t of L & I (Amicus Br.) at 5-8.[2]

¶ 39 Even assuming it remains an open question whether the administrative remedies under WISHA preclude a public policy tort claim, I would conclude that WISHA remedies are inadequate to promote the public policy at issue. L & I explains that when it brings a discrimination action under RCW 49.17.160, it does so to carry out its statutory purpose and duty—to investigate complaints of discrimination against employees who voice safety and health concerns in the workplace and to seek limited relief on their behalf. WAC 296-360-020. L & I controls the litigation and brings the action to seek remedies that benefit the complainant, but L & I does not represent the complainant. Further, L & I can seek only those limited remedies the statute authorizes it to pursue, such as back pay and reinstatement. See WAC 296-360-020; -160. It does not plead compensatory damages, including emotional distress damages, or front pay. See Amicus Br. at 10-12. In contrast, the Energy Reorganization Act at issue in Korslund provided an administrative process for actually adjudicating whistleblower complaints, providing tort-like remedies, including reinstatement, back pay, and compensatory damages, as well as attorney fees and expert witness fees. 42 U.S.C. § 5851(b)(2)(B); see Amicus Br. at 19. Given this distinction, reliance on Korslund is misplaced.

¶ 40 Perhaps the most striking feature of the WISHA administrative scheme that renders the statutory remedy inadequate is the 30-day limitation period. The majority asserts that 30 days is ample time for an employee to bring a claim, but fails to consider what we have said about the “adequacy” of shortened filing periods in other contexts involving employee claims. In the context of employer-employee arbitration contracts, we held that claim filing periods of up to 180 days are substantively unconscionable. See Adler v. Fred Lind Manor, 153 Wash.2d 331, 356-57, 103 P.3d 773 (2004) (citing federal cases recognizing that a 30-day filing period was unconscionably short and holding that the 180-day filing deadline at issue was unconscionable). We observed in Adler that employees who are constructively terminated through adverse employment action or hostile work environments may lose the opportunity 255*255 to recover under a shortened filing period. If instead of firing an employee directly, a company merely offers progressively fewer or worse-quality assignments, a 30-day deadline will quickly lapse before the “last straw” that encourages the employee to file a complaint.

¶ 41 Furthermore, even an unequivocally fired employee may not learn the reason for his or her termination straight away if the reason is retaliation for making workplace-safety complaints. Cf. Hubbard v. Spokane County, 146 Wash.2d 699, 703-06, 50 P.3d 602 (2002) (describing how an employee fired for insisting that his superiors follow the law was ostensibly terminated for a nondiscriminatory reason, as part of a “`reorganization'”). WISHA allows for an extension of time if the employer “concealed, or misled the employee regarding the grounds for, discharge,” WAC 296-360-030(4), but it does not relax the filing deadline if the employer gives no reason at all. The employees who will be affected by our ruling are often at-will employees who may be fired at any time for any reason or no reason. Ford v. Trendwest Resorts, Inc., 146 Wash.2d 146, 152, 43 P.3d 1223 (2002). Therefore, the employer is within its rights to terminate the employee without explanation, leaving the employee to investigate and discover the wrong on his or her own.

¶ 42 Of course, none of this even addresses how unrealistic it is to expect that within 30 days of getting a pink slip an employee will be able to find and hire a lawyer, investigate the real reason for his or her termination, and file suit. Employees in this situation are likely thinking more about finding a new job and paying their bills within the first month of being fired.

¶ 43 The inadequacy of the WISHA remedy, including the extremely short period for bringing a claim, is strong evidence that the legislature recognized the existence of a private cause of action and meant RCW 49.17.160 to provide a supplemental investigative process. The statute has remained unchanged since its enactment in 1973, and we have consistently interpreted it to be coextensive with common law remedies. See RCW 49.17.160. We should be very cautious of changing our view under a newfound “jeopardy” analysis at this late juncture.

¶ 44 Instead, we should reaffirm that the jeopardy prong of our public policy tort analysis is but one aspect of a four-part test designed to identify a common law cause of action where this is necessary to encourage employees to act in a way that furthers public policy. In this regard, the public policy tort claim is aptly described as resting on a private attorney general concept. The jeopardy prong must be understood in this context. It does not require that a tort claim be the only possible way to enforce the public policy. Rather, consideration of the “adequacy” of means other than the tort claim to enforce the public policy involves the same type of inquiry that this court undertook in Wilmot and Ellis. These cases provide the most direct answer to the first certified question before the court. The answer is no.

DUI Laws

¶ 45 Cudney and ALSCO agree the DUI laws do not require or expressly encourage the reporting of criminal violations. Even so, Cudney contends that reporting violations is necessary for the effective enforcement of the public policy. Accordingly, the second certified question asks whether the DUI laws adequately promote the public policy so as to preclude a wrongful discharge claim. Both parties agree we can examine the adequacy of the DUI laws and determine this issue as a matter of law. Certification at 2.

¶ 46 The Washington legislature has adopted a number of statutes criminalizing driving under the influence of alcohol and imposing penalties for violations. See RCW 9.91.020; RCW 46.61.502, .504, .5055. ALSCO concludes that the existence of these statutes precludes a wrongful discharge claim as a matter of law because “Cudney cannot show that reporting a drunk driver to his employer is the `only available adequate means’ to prevent drunk driving.” ALSCO’s Resp. Br. at 37 (quoting Danny v. Laidlaw Transit Servs. Inc., 165 Wash.2d 200, 222, 193 P.3d 128 (2008)).

¶ 47 This argument misapprehends the focus of the jeopardy analysis in determining 256*256 whether a public policy tort claim will lie. Echoing ALSCO’s argument, the majority reads our precedent as suggesting that jeopardy cannot be shown if any other avenue exists to address the public policy at issue. Majority at 249-50. If this were the case then we would never allow a tort claim to vindicate a public policy expressed in a criminal statute. Yet, this court has not held that the existence of a criminal or regulatory enforcement mechanism necessarily precludes a Thompson tort claim. Rather, in the context of whistleblower-type claims we have examined the adequacy of the enforcement mechanism at issue with a view toward determining whether public policy would be jeopardized if an employee could be fired for reporting violations. See, e.g., Ellis, 142 Wash.2d at 461-62, 13 P.3d 1065; Hubbard, 146 Wash.2d at 717, 50 P.3d 602; see generally Gardner, 128 Wash.2d at 941, 913 P.2d 377 (“plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy”).

¶ 48 Relevant to this analysis is consideration of whether, by relying solely on criminal regulatory or administrative enforcement schemes, “it would often be left up to chance whether the public policy was enforced.” Hubbard, 146 Wash.2d at 717, 50 P.3d 602. In Hubbard, for example, the court noted that, even though the zoning decision questioned by the plaintiff could have been challenged administratively, several factors made it uncertain whether the administrative process would be pursued in every case. Id. Encouraging employees to speak up against zoning decisions without fear of termination “would be more efficient . . . to prevent these types of violations before they occurred.” Id.

¶ 49 Similarly here, it is uncertain whether a violation of the DUI laws will be pursued in a criminal prosecution. For this to occur law enforcement must first locate the drunk driver and probable cause must exist to make an arrest. Following an arrest, the prosecutor then has discretion whether to charge a crime. Assuming that charges are filed, a judge or jury must find evidence beyond a reasonable doubt to convict. And it is unfortunately a consequence of limited public resources that many instances of drunk driving go undetected until public safety has been jeopardized. Relying solely upon the criminal law mechanism for enforcement of the DUI laws thus leaves the enforcement of the public policy uncertain. Cf. id. It would be more efficient to encourage employee actions that reinforce the DUI laws and prevent life-threatening violations before they occur.[3] Accordingly, I would answer the second certified question no.

CONCLUSION

¶ 50 Both WISHA and Washington’s DUI laws provide avenues to promote the important public policies they reflect. The statutory remedies, however, do not as a matter of law foreclose the possibility of a common law tort claim by a wrongfully terminated employee. Considering the jeopardy prong of our four-part public policy tort analysis, we should answer no to the certified questions. Accordingly, I dissent.

WE CONCUR: CHARLES W. JOHNSON and TOM CHAMBERS, Justices, and RICHARD B. SANDERS, Justice Pro Tem.

[1] The parties do not dispute the clarity element of the analysis; they agree that WISHA and its accompanying regulations establish a clear public policy of ensuring worker safety and protecting workers who report safety violations and that the DUI laws establish a clear public policy of protecting the public from drunk drivers. The “causation” element and “absence of justification” element are fact-specific inquiries that we are not asked to decide here.

[2] The dissent also cites Adler v. Fred Lind Manor, 153 Wash.2d 331, 103 P.3d 773 (2004), regarding the 30-day filing deadline. Dissent at 254-55. Adler, however, does not stand for the proposition that any specific time limitation, especially one considered and imposed by the legislature, is inadequate. Rather, Adler held that the specific terms of a privately negotiated arbitration agreement that cut short the statute of limitations for filing a claim were unconscionable because they foreclosed the opportunity for state or federal agency investigation and mediation and did not provide for tolling. 153 Wash.2d at 355, 357, 103 P.3d 773. These egregious facts do not characterize the terms of WISHA, which involves L & I and allows for extension of the time to file a complaint.

[3] The dissent also takes issue with the fact that L & I, not the complainant, controls the litigation if it pursues the complaint. Dissent at 254-55. This, however, misses the point of the jeopardy prong of the analysis, which is to consider whether the statutory protections are adequate to protect the public policy, not whether the claimant could recover more through a tort claim. If L & I pursues a claim, it enforces the public policies underlying WISHA. While we find it irrelevant as long as the public policies are adequately protected, nothing in WISHA prohibits L & I from pleading tort-like remedies. WAC 296-360-020 (“The suit may ask the court to . . . grant other appropriate relief.”); see RCW 49.17.160(2). The role of L & I does not render WISHA inadequate.

[4] It is notable that Cudney reported the drunk driving to his employer, not to the police. As we have previously noted, “the jeopardy element . . . generally involves a question of fact,” as well as a question of law. Korslund, 156 Wash.2d at 182, 125 P.3d 119 (citing Hubbard, 146 Wash.2d at 715, 50 P.3d 602). For now we decide the issue as a matter of law. However, we might have a different case if Cudney acted pursuant to or in service of enforcement of the state’s DUI laws and faced termination for that. There, Cudney might be able to argue that his action “`was necessary for the effective enforcement of the public policy.'” Id. at 181, 125 P.3d 119 (internal quotation marks omitted) (quoting Hubbard, 146 Wash.2d at 713, 50 P.3d 602). The statutory system in place is adequate to promote the public policy. Cudney’s problem here is that he acted outside of it.

[1] The issue in Korslund was whether to expand the tort of wrongful termination in violation of public policy where no such tort had previously been recognized under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851. In that context, the court applied the four-part test from Gardner to the particular facts before it. Significantly, the court did not suggest it was retreating from established precedent recognizing a public policy tort claim premised on state workplace protection statutes.

[2] As L & I observes: “Complainants and [L & I] have relied on Wilmot for more th[a]n 18 years to conduct their affairs.” Amicus Br. at 7 n. 4.

[3] The majority suggests that, as a question of fact, Cudney might have a better case had he reported the drunk driving to law enforcement rather than to his employer. Majority at 250 n. 4. It is unclear how this conclusion follows from the majority’s analysis because under that analysis Cudney’s actions would never be the only available adequate means to enforce drunk driving laws.

Wrongful Discharge

DONELSON v. DUPONT CHAMBERS WORKS, 206 N.J. 243, 20 A.3d 384 (2011)

Justice ALBIN delivered the opinion of the Court.

A jury determined that DuPont Chambers Works[1] (DuPont) violated the Conscientious Employee Protection Act (also referred to as CEPA), N.J.S.A. 34:19-1 to -8, by retaliating against one of its employees, plaintiff John Seddon, for reporting safety concerns about the company’s operation. The retaliatory acts caused Seddon to suffer, in effect, a mental breakdown rendering him unfit for continued employment at DuPont. The jury found that Seddon’s lost wages were the proximate result of DuPont’s retaliation and awarded him both economic and punitive damages.

The Appellate Division overturned the verdict and damages award, reasoning that the trial judge erred by not instructing the jury that Seddon could be awarded lost wages only if he was constructively discharged. According to the Appellate Division, Seddon was not entitled to lost wages unless “[t]he employer’s conduct [was] `so intolerable that a reasonable person would be forced to resign rather than continue to endure it.'” Donelson v. DuPont Chambers Works, 412 N.J.Super. 17, 31, 988 A.2d 604 (App.Div.2010) (citation and quotation omitted).

We now reverse the Appellate Division. Constructive discharge is but one ground for recovery of lost wages under CEPA. CEPA does not permit an employer to take an “adverse employment action” against an employee for reporting workplace-safety violations. N.J.S.A. 34:19-2(e), -3. If an employer engages in unlawful retaliation, then it is accountable for the damages proximately caused to the employee. Here, the trial judge properly instructed the jury on both the elements of a CEPA claim and the common-law principles of damages that apply to such a claim. Seddon introduced medical testimony that the reprisals against him for his whistle-blowing activities mentally disabled him from continued employment at DuPont. That was a sufficient basis for the award of lost wages. Seddon was not required to show that a “reasonable person”—one not psychologically injured—would have left DuPont because of the intolerable conditions of his employment.

We therefore reinstate the jury’s verdict and award of damages.

I.

Defendant DuPont, which manufactures chemical products, employed plaintiff John Seddon for approximately thirty years.[2] In December 2002, Seddon was an operator technician in the phosgene building 387*387 at one of DuPont’s facilities. Phosgene is a “highly toxic” and “very reactive chemical.”[3] Among Seddon’s duties was to ensure the safe operation of equipment and the safe handling of dangerous chemicals in the building. He was also responsible for the safety of those who worked there and those who lived in the surrounding area.

In December 2002, Seddon expressed to a shift manager his concern about the dangerous manner in which DuPont’s security guards were conducting random searches of employees’ cars at nighttime. Drivers were made to exit from their cars at the front gate and stand unprotected in the dark while passing traffic, including trucks, whizzed by.[4] Because DuPont did nothing to ameliorate the safety hazards caused by these stops, Seddon filed a complaint with the federal Occupational Safety and Health Administration (OSHA).

After DuPont became aware of the OSHA complaint, it appointed Paul Kaiser to serve as Seddon’s direct shift supervisor. Kaiser began imposing sick- and vacation-day-reporting requirements specific to Seddon, who previously did not report to a shift supervisor.

In October 2003, Seddon filed complaints with DuPont’s management about unsafe conditions in the operation of the phosgene reactor. Seddon warned that deficiencies in the operation of the reactor could cause an explosion and the release of deadly gasses into the atmosphere, killing and seriously injuring nearby residents. Seddon compared the safety violations relating to the phosgene reactor to those that led to the infamous chemical disaster in Bhopal, India.[5] In response, the DuPont Guardian Manual, to which Seddon referred in detailing safety violations, was removed from the phosgene control area where Seddon worked.

A few months later, according to Seddon, Kaiser falsely accused him of forging his timecards. Seddon also stated that, in March 2004, DuPont’s management falsely accused him of failing to take a proper reading of a caustic chemical and of making a fictitious entry in a log. There followed a negative performance review of Seddon and the institution of performance reviews every three months. During this time period, Kaiser subjected Seddon to constant verbal abuse. Seddon reported to DuPont’s corporate headquarters that he had become the target of harassment for merely voicing safety concerns.

Although DuPont’s investigators questioned Seddon about his safety complaints and the ensuing harassment, their attention focused on allegations that Seddon had threatened DuPont employees, including Kaiser—allegations that Seddon categorically denied. In April 2004, based on a recommendation by DuPont’s employee—assistance counselor, Seddon was placed on short-term disability with pay. During that time, Seddon lost the considerable overtime that he had been earning. As a condition of his reinstatement, DuPont required that Seddon be examined by three mental-health experts and undergo a fit-for-duty evaluation. Three independent evaluators, a psychiatrist and two psychologists, 388*388 examined Seddon and cleared him to return to work. Significantly, one of the mental-health experts diagnosed Seddon as exhibiting “features of significant dysphoria and vulnerability to depression.”[6]

The suspension, which lasted fifty-three days, made Seddon feel “worthless” and “beaten.” Moreover, DuPont placed Seddon on “probation” subject to performance reviews every three months. Seddon maintained that Kaiser continued to make false accusations that Seddon had threatened him and other employees. Interactions with Kaiser caused Seddon to suffer anxiety attacks, and Seddon lived in constant fear that he would become the target of continued false charges of misconduct.

In September 2006, DuPont required Seddon to work twelve-hour shifts in isolation. For Seddon, working a twelve-hour shift alone was “torture.” One month later, Seddon began seeing a therapist and psychiatrist.

In January 2007, Seddon took a six-month leave of absence. After completing that leave of absence, DuPont gave Seddon a disability pension. Seddon never returned to DuPont.

II.

In February 2005, Seddon filed a civil complaint alleging that defendants DuPont and Kaiser retaliated against him for objecting to activity that he reasonably believed violated New Jersey’s law and public policy.[7] Seddon asserted that the reprisals against him contravened the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. Seddon also asserted the common-law claim of intentional/negligent infliction of emotional distress against both defendants.[8] Seddon sought compensatory damages for “loss of earnings and other employment benefits” and for suffering mental anguish, humiliation, and injury to his reputation.

Seddon’s complaint was filed while he still worked for DuPont. His case did not come to trial until January 2008, after he left the company’s employ with a disability pension. Seddon did not amend his complaint to allege a constructive discharge.

At the beginning of the trial in January 2008, DuPont moved to bar Seddon’s economic-damages claim for front and back pay because he had not pled constructive discharge and DuPont had not terminated him.[9] The trial court denied DuPont’s in limine motion.[10] The court held that if Seddon could prove that DuPont’s retaliation caused him to suffer a psychological breakdown that led to his acceptance of an early disability retirement, then he would be entitled to the difference between the wages he would 389*389 have earned had he worked and retired in the ordinary course and the disability pension he was receiving.

During a several-week trial, numerous witnesses testified, including Seddon’s psychological experts, who concluded that Seddon was mentally disabled as a result of DuPont’s retaliatory conduct. Louise Cressman-Watral, a therapist, counseled Seddon for approximately sixteen months. She testified that Seddon was suffering from “a major depressive disorder” caused by DuPont’s reprisals and general mistreatment of him. Seddon exhibited “fear of DuPont as an employer,” and was suffering from “insomnia, loss of appetite,” “anxiety,” and feelings of “hopelessness.” She further noted that the retaliation forced Seddon to take psychotropic medications to battle his depression and insomnia. Watral ultimately concluded that it was unlikely that Seddon would ever recover from the mental illness caused by DuPont.

Dr. Charles Semel, a psychiatrist, also testified, explaining that Seddon suffered from “pathological stress” that was “affecting the quality of his life.” The stress was “causally related” to DuPont’s retaliation against Seddon for raising safety concerns about the plant’s operation. Dr. Semel reasoned that Seddon had been sensitized to safety issues after witnessing a “devastating industrial accident” at DuPont years earlier in which several of his coworkers were severely injured. In addition to his concern for others, Seddon “felt physically at risk” at the plant, and the isolation he endured at the end of his career forced him “to function alone in a fairly dangerous environment.” Dr. Semel ultimately concluded that the mental illness caused by DuPont’s retaliation was both “worsening” and “permanent.”

The trial court charged the jury in accordance with its earlier ruling that a recovery of lost wages was not dependent on proving a constructive discharge. The court instructed the jury:

Mr. Seddon claims that DuPont caused him to suffer economic loss by depriving him of overtime pay, and by causing him to suffer a psychiatric illness that required him to retire earlier than he wanted to on a disability pension.

In order to obtain economic damages related to his psychiatric disability, Mr. Seddon must prove that DuPont proximately caused his disability, and that his disability rendered him unable to perform work for DuPont.

The jury returned a verdict in favor of Seddon, finding that he had “proven by a preponderance of the evidence that DuPont retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act.” The jury awarded Seddon $724,000 for the “economic losses he ha[d] suffered as a proximate result of DuPont’s violations of [CEPA]” and $500,000 in punitive damages. Seddon did not receive an award for pain and suffering. Additionally, the trial court awarded Seddon $523,289 in counsel fees.

DuPont appealed.

III.

The Appellate Division reversed and entered judgment in favor of DuPont, concluding that Seddon could not prevail on a lost-wage claim under CEPA unless he proved an actual or constructive discharge. Donelson v. DuPont Chambers Works, 412 N.J.Super. 17, 22-23, 988 A.2d 604 (App. Div.2010).[11] In justifying that decision, 390*390 the panel compared the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, to CEPA. Id. at 30-36, 988 A.2d 604. The panel claimed that “in the LAD context,” several Appellate Division decisions concluded “that economic damages cannot be recovered where there has been no constructive discharge.” Id. at 32, 988 A.2d 604 (citations omitted). The panel reasoned that because CEPA and LAD cases have been construed “identically on a wide variety of substantive issues” and because “[n]othing in the legislative history of CEPA requires a contrary result,” a plaintiff in a CEPA case should be required in pursuing a lost-wage claim to prove an actual or constructive discharge. Id. at 33-35, 988 A.2d 604. Because punitive damages may be awarded only if a plaintiff receives an award of compensatory damages, the panel vacated the punitive-damages award as well. Id. at 36, 988 A.2d 604. Those rulings stripped Seddon of his status as a “prevailing party,” and therefore the panel vacated the trial court’s award of attorneys’ fees. Id. at 36-37, 988 A.2d 604. In light of the panel’s ruling that Seddon was not entitled to attorneys’ fees, it did not address his claim that the fees awarded were insufficient. Ibid. Similarly, it did not address DuPont’s alternative arguments challenging the propriety of the punitive-damages award. Id. at 36, 988 A.2d 604.

We granted Seddon’s petition for certification, “limited to the issue whether recovery for economic losses associated with back and front pay requires proof of actual or constructive discharge under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8.” See Donelson v. DuPont Chambers Works, 203 N.J. 95, 999 A.2d 464 (2010). We also granted the motions of the New Jersey Chapter of the National Employment Lawyers Association and the Academy of New Jersey Management Attorneys to participate as amici curiae.[12]

IV.

The question presented in this case is whether, under CEPA, an employee who becomes the victim of employer retaliation for engaging in statutorily protected whistle-blowing activities and who becomes psychologically disabled due to that retaliation can pursue a lost-wage claim without having to prove a constructive discharge.

Seddon and amicus New Jersey Chapter of the National Employment Lawyers contend that the plain language and remedial purpose of CEPA support the trial court’s application of common-law principles of damages to the lost-wage claim in this 391*391 case. They maintain that testimony from mental-health experts that unlawful retaliation caused an employee’s psychological breakdown rendering him unfit for duty is sufficient to make out a lost-wage claim. They urge this Court not to superimpose a requirement of constructive discharge— not found in the statute—as an essential element of a lost-wage claim in a CEPA case and to reinstate the jury’s verdict.

On the other hand, DuPont and amicus Academy of New Jersey Management Attorneys assert that, consistent with LAD jurisprudence, proof of a constructive discharge—absent an actual discharge— should be a prerequisite to the award of lost wages. They reason that applying an objective, constructive-discharge standard to a CEPA lost-wage claim will ensure predictability in compensatory-damage awards. They believe that affirming the Appellate Division’s approach will deter pretextual claims, protect against an award to the idiosyncratic plaintiff, and safeguard employers from an unwarranted expansion of liability claims.

The resolution of the issue before us is one of statutory interpretation-determining the remedies available to whistle-blowers under CEPA. Therefore, we first turn to CEPA, exploring its overarching purpose and the specific statutory language that applies to this case.

V.

The Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, is intended to encourage employees to speak up about unsafe working conditions that violate the law or public policy and to provide protection for those who do so. See Barratt v. Cushman & Wakefield of N.J., Inc., 144 N.J. 120, 127, 675 A.2d 1094 (1996). Under CEPA, it is unlawful for an employer to retaliate against an employee who “report[s] illegal or unethical workplace activities.” Dzwonar v. McDevitt, 177 N.J. 451, 461-62, 828 A.2d 893 (2003) (internal quotations and citation omitted). Because CEPA is “remedial legislation,” it “should be construed liberally to effectuate its important social goal”—”to encourage, not thwart, legitimate employee complaints.” Id. at 463, 828 A.2d 893 (internal quotation marks and citations omitted); accord D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 120, 927 A.2d 113 (2007).

We begin our analysis by looking at the statute’s plain language, which is generally the best indicator of the Legislature’s intent. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). We must ascribe to the words used in CEPA their “ordinary meaning and significance… and read them in context with related provisions so as to give sense to the legislation as a whole.” Ibid. (citations omitted).

CEPA prohibits an employer from taking “any retaliatory action against an employee” who engages in certain protected activity. N.J.S.A. 34:19-3 (emphasis added). Thus, an employer may not retaliate against an employee who “[d]iscloses … to a supervisor or to a public body an activity, policy or practice of the employer… that the employee reasonably believes… is in violation of a law, or a rule or regulation promulgated pursuant to law.” N.J.S.A. 34:19-3(a). Nor may an employer retaliate against an employee who “[o]bjects to … any activity, policy or practice which the employee reasonably believes… is in violation of a law, or a rule or regulation” or “is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34:19-3(c). One could hardly dispute that an employee’s complaint to a supervisor or his objections raised about the catastrophic 392*392 consequences that he reasonably believes might occur from the unsafe operation of a reactor containing extremely dangerous chemicals falls within the activity protected by N.J.S.A. 34:19-3(a) or (c).

The issue in this case is not whether Seddon engaged in protected activity under CEPA but whether DuPont took retaliatory action against him that entitles him to lost wages. “`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.” N.J.S.A. 34:19-2(e) (emphasis added). An employee who suffers “retaliatory action” may file a civil suit and, if he prevails, is entitled to “[a]ll remedies available in common law tort actions.” See N.J.S.A. 34:19-5. The statute further provides that “[t]he court shall also order, where appropriate and to the fullest extent possible[,] … compensation for all lost wages, benefits and other remuneration.” Ibid.

In surveying the sweep of CEPA, we must determine what acts are “`[r]etaliatory'” under the statute, N.J.S.A. 34:19-2(e), and then what “remedies available in common law tort actions” are applicable here, N.J.S.A. 34:19-5. CEPA specifies that the “discharge” of an employee for engaging in protected activity is retaliatory action. N.J.S.A. 34:19-2(e). A discharge encompasses not just an actual termination from an employment, but a constructive discharge. A constructive discharge occurs when an employer’s conduct “is so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 28, 803 A.2d 611 (2002) (citation omitted). But the universe of possible retaliatory actions under CEPA is greater than discharge, suspension, and demotion; it includes “other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e).

What constitutes an “adverse employment action” must be viewed in light of the broad remedial purpose of CEPA, and our charge to liberally construe the statute to deter workplace reprisals against an employee speaking out against a company’s illicit or unethical activities. Cast in that light, an “adverse employment action” is taken against an employee engaged in protected activity when an employer targets him for reprisals—making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations—causing the employee to suffer a mental breakdown and rendering him unfit for continued employment. See N.J.S.A. 34:19-2(e).

If the employer’s retaliatory action is the proximate cause of the employee’s mental unfitness for duty, then CEPA grants the employee “[a]ll remedies available in common law tort actions.” N.J.S.A. 34:19-5. The “[a]ll remedies available” language is complemented by the more specific provision that the “court shall also order, where appropriate and to the fullest extent possible[,] … compensation for all lost wages, benefits and other remuneration.” Ibid.

Under the common law, “a defendant who negligently injures a plaintiff or his property may be liable for all proximately caused harm, including economic losses.” People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 251, 495 A.2d 107 (1985). More to the point, a person injured by the tortious conduct of another “has the right to recover damages for diminished-earning capacity,” provided there is sufficient proof both to establish 393*393 that the injury will impair his future income and to quantify the lost income. Frugis v. Bracigliano, 177 N.J. 250, 285, 827 A.2d 1040 (2003) (citations omitted); accord Coll v. Sherry, 29 N.J. 166, 176, 148 A.2d 481 (1959) (same). For example, a professional baseball player whose career ends because he was struck by a negligently operated car will have a lost-wage claim that likely will include, by the time of trial, a claim for back and front pay. The traditional principles of damages in tort cases apply with equal force in this case. To the extent that DuPont, by its retaliatory action, proximately caused Seddon to suffer a mental injury incapacitating him from his former employment, he has “the right to recover damages for diminished-earning capacity.” See Frugis, supra, 177 N.J. at 285, 827 A.2d 1040.

This plain-language approach ordinarily would be dispositive and end our analysis. However, we also reject DuPont’s assertion that the legislative history of CEPA or the constructive-discharge jurisprudence under LAD suggests a contrary result. We address each of those points in turn.

VI.

A.

The Legislature enacted the Conscientious Employee Protection Act in 1986. See N.J.S.A. 34:19-1 to -8; L. 1986, c. 105. Since its creation, CEPA’s overall structure has remained essentially unaltered, but the scope of its protections and the breadth of its remedies have expanded considerably.

The definition of “[r]etaliatory action” remains in its original form to the present day. Compare L. 1986, c. 105, § 2; with N.J.S.A. 34:19-2(e). However, the scope of protected activities has been expanded through several amendments. Compare L. 1986, c. 105, § 3; with L. 1989, c. 220; L. 1997, c. 98, § 2; and L. 2005, c. 329, § 1. Additionally, CEPA’s remedy provision, N.J.S.A. 34:19-5, has been strengthened twice since its enactment. See L. 1990, c. 12, § 4; L. 2005, c. 329, § 2. The first iteration of CEPA in 1986 did not include the following language added in 1990: “All remedies available in common law tort actions shall be available to prevailing plaintiffs.” Compare L. 1986, c. 105, § 5; with L. 1990, c. 12, § 4. Moreover, in 2005 the Legislature further expanded relief available to successful plaintiffs by amending N.J.S.A. 34:19-5. Before 2005, CEPA provided that a “court may also order … compensation for lost wages, benefits and other remuneration.” L. 1990, c. 12, § 4. The newly enacted provision seemingly put more teeth in the remedy, stating that a “court shall also order, where appropriate and to the fullest extent possible[,] … compensation for all lost wages, benefits and other remuneration.” L. 2005, c. 329, § 2 (emphasis added).

DuPont argues that a statement issued by the Senate Labor Committee, at the time of the proposed 2005 amendments, indicates that the Legislature intended an actual or constructive discharge to be a precondition for a lost-wage claim. We find no credible support for that position.

The Senate Labor Committee reported favorably on the bill proposing the 2005 amendments, noting that it “enhances the scope and strengthens the enforcement provisions of” CEPA. Senate Labor Committee, Statement to Senate Bill No. 1886 (Oct. 14, 2004).[13] The Committee emphasized 394*394 that the proposed law “is not intended to diminish, reduce or curtail the rights or remedies available to employees under [CEPA] in any way.” Ibid. DuPont grasps on to the following language to suggest that a lost-wage claim is dependent on a constructive discharge:

The bill states that the court must order, to the fullest extent possible, an injunction against continuing violations, reinstatement to employment, compensation for lost pay and costs of the case, but only where appropriate. The bill thus takes into consideration that not all of these measures are always applicable, as, for example, in a case where the employer retaliation did not include a termination of employment.

[Ibid.]

This committee statement makes the unremarkable point that the remedy must be commensurate with the loss or damage suffered by the plaintiff; thus, a remedy will only follow “where appropriate.” Surely, it would not be “appropriate,” or necessary, to order “reinstatement to employment” for an employee who was not terminated. It would not be “appropriate” to award “compensation for all lost wages” if the employee remained employed and suffered only emotional damages. But nothing in this committee statement in any way suggests that compensation for lost wages would not be “appropriate” if an employer that repeatedly retaliates against an employee causes the employee to suffer a disabling mental illness.

The clear language of CEPA is our surest guide. We will not “rewrite a plainly-written enactment” or engraft “an additional qualification which the Legislature pointedly omitted.” See Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 323, 962 A.2d 1103 (2009) (internal quotation marks and citation omitted). The remedy provision of CEPA, N.J.S.A. 34:19-5, does not intimate that a constructive discharge is the only basis for a lost-wage claim in the circumstances before us.

In charging the jury, the trial court properly followed the Legislature’s expressed intent that “[a]ll remedies available in common law tort actions shall be available to prevailing plaintiffs.” Ibid. The jury’s verdict reveals that DuPont retaliated against Seddon because he expressed legitimate safety concerns about the operation of the phosgene reactor, that DuPont’s retaliatory action caused Seddon’s mental injury, that Seddon’s mental injury disabled him from working, and that his inability to work resulted in his lost wages.

B.

DuPont also urges us to abandon our plain-language interpretation of CEPA on the supposition that an actual or constructive discharge is the only means of pursuing a lost-wage claim under LAD. That supposition is somewhat dubious because this Court has never concluded in a LAD retaliation case that front and back pay can be awarded only in cases of actual or constructive discharge. On occasion, when appropriate, we have looked to LAD in construing CEPA.[14] But CEPA and LAD 395*395 are statutes that have their own distinct purposes and are worded differently to achieve those purposes. See generally N.J.S.A. 10:5-1 to -49; N.J.S.A. 34:19-1 to -8. It is enough for us to decide the case before us based on the controlling statutory language in CEPA without resolving different scenarios that might arise under LAD. Nevertheless, several points must be made in response to DuPont’s arguments.

We reject DuPont’s assertion that Shepherd, supra, 174 N.J. 1, 803 A.2d 611, stands for the proposition that a constructive discharge is a prerequisite to a lost-wage claim under CEPA. In Shepherd, Richard Saylor claimed that his employer—through harassing conduct—retaliated against him in violation of LAD, resulting in his constructive discharge. Id. at 7, 27, 803 A.2d 611. To prove a constructive discharge, Saylor had to show that his employer’s conduct was “so intolerable that a reasonable person would be forced to resign rather than continue to endure it.” Id. at 28, 803 A.2d 611 (citation omitted). The Court concluded that Saylor did not meet that threshold requirement. Id. at 29, 803 A.2d 611.

Unlike the case before us, Saylor did not claim or present expert testimony that his employer’s harassing conduct caused him a psychological illness that rendered him incapable of working and therefore entitled him to lost wages. More importantly, this Court did not hold that constructive discharge was a prerequisite to lost-wage damages in a retaliation case arising under LAD. Shepherd addressed entirely different issues, under entirely different facts, within the context of an entirely different statute. Shepherd cannot control the outcome of this case.

We need not decide here whether, under the anti-retaliation provisions of LAD, a plaintiff can proceed with a lost-wage claim when an employer’s misconduct causes a mental-illness-induced retirement. For that reason, we decline to give an advisory opinion on a case such as Padilla v. Berkeley Educ. Servs. of N.J., 383 N.J.Super. 177, 181, 183-84, 891 A.2d 616 (App. Div.2005), in which a LAD plaintiff who failed to prove constructive discharge entitling her to lost wages never claimed that her employer-caused illness rendered her incapable of working. See also Woods-Pirozzi v. Nabisco Foods, 290 N.J.Super. 252, 276-77, 675 A.2d 684 (App.Div.1996) (LAD plaintiff who admitted she was medically able to work was not permitted lost wages when her constructive-discharge claim was dismissed at summary judgment). We simply hold here that, given the facts before us, lost wages are recoverable in a CEPA case, even in the absence of a constructive discharge.

VII.

We conclude that the trial court properly charged the jury that Seddon could only receive “economic damages related to his psychiatric disability” if he proved that DuPont “proximately caused his disability, and that his disability rendered him unable to perform work for [the company].” With that charge, and based on the record before it, the jury had the authority to find that DuPont’s retaliation rendered Seddon unfit for work and that Seddon was entitled to front and back pay for lost wages.

We therefore reverse the Appellate Division and reinstate the jury’s award of economic damages to Seddon. Because the Appellate Division did not decide Seddon’s challenge to the sufficiency of the attorneys’ fees awarded to him by the trial court or DuPont’s challenge to the punitive-damages award, we remand these and any other unaddressed issues for its consideration.

396*396 Justice LaVECCHIA, dissenting.

I harbor no disagreement with the majority that the Legislature created an important and necessary remedy for whistle-blowers through the enactment of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. CEPA advances the salutary social policies of ensuring that employees can report harmful practices without fear of losing their jobs, and that they can continue to act as public watchdogs for employer action that is contrary to law or public policy. See N.J.S.A. 34:19-3 (prohibiting retaliation against whistle-blowers and enumerating protected employee activity). To that end, CEPA is powerful medicine. Its remedies are designed to be prompt and to be particularly protective of those who wish to remain employed or to regain employment. See N.J.S.A. 34:19-5 (fixing one-year period for filing suit and defining available remedies). Specifically, CEPA identifies the remedies of an injunction to restrain continued violation of the Act; reinstatement to one’s position or its equivalent; reinstatement of benefits and seniority rights; compensation for lost wages, benefits, and other remuneration; costs and attorney’s fees; and a civil fine and/or punitive damages. Ibid. It also permits the award of “remedies available in common law tort actions” to prevailing plaintiffs,[1] ibid., and therein lies my disagreement with the majority’s view in this matter.

The result reached by the majority allows a plaintiff to claim adverse employment action—here specific claimed acts of retaliation—and obtain not only relief from those acts in the workplace but also, after leaving the workplace for retirement, to obtain front and back pay damages without satisfying the requirements for proving constructive discharge. My view of the proper application of CEPA’s inclusion of “remedies available in common law tort actions” is profoundly different from that of the majority. By that language, CEPA was not transformed into a new configuration of those traditional tort remedies; yet that is exactly the result achieved today. The majority’s analysis invests CEPA with a new application, one that, I believe, loses sight of the integrated form and meaning of this very important piece of social legislation. Because I cannot endorse the majority’s analysis or judgment, however much I might agree about the high purpose and the social importance of CEPA, I respectfully dissent. Although not convincing for my colleagues in the majority, I feel compelled to record the essential reasoning behind my disagreement.

I.

This Court’s grant of certification was limited to a single question: whether CEPA limits damages in the form of front and back pay to circumstances in which plaintiff proves actual or constructive discharge. Donelson v. DuPont Chambers Works, 203 N.J. 95, 999 A.2d 464 (2010).

In this case, plaintiff suffered the last act of retaliation, namely being sent for the “fit for duty” examination, in 2004. That became the lynchpin for his CEPA litigation, which was timely filed in 2005 while he remained employed. That plaintiff filed his CEPA action while still employed is not uncommon, and is in part why CEPA permits injunctive remedies. Such remedies ensure that, going forward, a non-retaliatory workplace is available to 397*397 the whistle-blowing employee who remains on the job. In this matter, plaintiff asserted that in September 2006 he was assigned to work alone, something he regarded as further retaliation but which the employer justified as a means of removing plaintiff from interaction with the supervisor about whom he had complained. Plaintiff continued to remain employed, while discovery went on, until he took a disability retirement in December 2007. He then sought to obtain compensation for lost wages during the period from his retirement forward, as additional consequential damages from the earlier retaliatory acts that, in his complaint, he claimed against DuPont. He did not plead constructive discharge and specifically declined to do so when the question was pressed by the trial court.

In Shepherd v. Hunterdon Developmental Center, this Court considered the relationship between a continuing series of acts and a constructive discharge claim in the context of a Law Against Discrimination (LAD)[2] hostile work environment case. 174 N.J. 1, 803 A.2d 611 (2002). There, the Court first concluded, as to plaintiff Saylor, that the series of acts he asserted to be discriminatory were minimally sufficient to withstand a motion for summary judgment substantively and therefore saved his claim from dismissal based on the bar of limitations. Id. at 26, 803 A.2d 611. Turning to his claim that his decision to take an early retirement could qualify as constructive discharge, with the resulting, albeit unspoken, front and back pay claim, the Court concluded that it could not. Id. at 29, 803 A.2d 611. Although set in the LAD context, our decision had little to do with the LAD, specifically, but much to do with the interplay between a hostile work environment claim and one for constructive discharge in general.

The Court noted that the ordinary standard for constructive discharge recognizes that all employees have an obligation to do what is necessary to maintain employment, id. at 28, 803 A.2d 611 (citations omitted), with the result that only an employee who can demonstrate that conditions were “so intolerable” that he was compelled to leave and join the ranks of the unemployed can recover for wrongful discharge. Ibid. (citing Jones v. Aluminum Shapes, Inc., 339 N.J.Super. 412, 428, 772 A.2d 34 (App.Div.2001)). Noting that the LAD permits recovery based on hostile acts that are “severe or pervasive,” this Court commented that there are “subtle but discernible differences between the standard for a hostile work environment and the standard for a constructive discharge.” Ibid. That is, the subset of LAD claims resting on constructive discharge has to meet both the LAD test that, in general, the employer knowingly permitted conditions of discrimination that were “severe or pervasive” and that they were also “so intolerable that a reasonable person subject to them would resign.” Id. at 27-28, 803 A.2d 611 (quoting Muench v. Twp. of Haddon, 255 N.J.Super. 288, 302, 605 A.2d 242 (App.Div.1992)) (quotation marks omitted). The analysis was supported by Title VII jurisprudence to like effect. Shepherd, supra, 174 N.J. at 28-29, 803 A.2d 611 (citing EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331-32 (7th Cir.2002); Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 301 (5th Cir.2001)); see Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, 159 L.Ed.2d 204, 216 (2004) (noting that constructive discharge “inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?”).

398*398 In applying that test to Saylor, because the discrete act to which he pointed for constructive discharge was insufficiently egregious and because his course of conduct claims were only barely enough to get him past summary judgment on his LAD hostile work environment claim, we concluded that he could not meet the standard for constructive discharge. Shepherd, supra, 174 N.J. at 28-29, 803 A.2d 611. The policy rationale that underlies the Shepherd framework is clear, because any alternate reading of the interplay between the LAD and constructive discharge would turn every hostile work environment claim into one that would support a decision to leave one’s employment.

II.

Plaintiff sought to accomplish two things through this appeal. First, he argued for disapproval of Shepherd because the standard it set was asserted to be inconsistent with CEPA’s goal of protecting and encouraging whistle-blowers. Second, in response to our post-argument inquiry whether the constructive discharge standard should be altered in CEPA actions involving a plaintiff who has been psychologically damaged, he asked that we adopt the following different standard in CEPA matters, namely that “[a]n employee is constructively discharged when he or she provides objective evidence of a medical or psychological condition caused by the employer’s conduct or work environment which renders the employee [on the basis of a subjective standard] incapable of continuing to work in defendant’s workplace.” The majority’s decision takes neither tack overtly; however, while employing an asserted “plain language” application of CEPA’s other tort remedies, it has effectively altered, for CEPA plaintiffs, Shepherd’s standard for securing the front and back pay relief that is rightfully available to a former employee only for a constructive discharge.

Plaintiff’s argument seeking disapproval of Shepherd rested on policies relating to encouraging CEPA plaintiffs and protecting them from retaliation by using broad readings of the available remedies. The flaw in that argument lies in the assertion that the Court in Shepherd in some fashion “raised the standard of proof for constructive discharge.” In fact, the Court did not do so; we simply acknowledged that there is a preexisting body of tort law fixing the standard for that claim and, further, recognized that the LAD did not erase it. See Shepherd, supra, 174 N.J. at 27-29, 803 A.2d 611.

The same is true of CEPA: it did not erase or alter the standard for constructive discharge. The Act identifies available remedies, including those generally injunctive in nature, and permits ordinary tort remedies as well, but it does not expand or supplant them. The remedies are available to the greatest extent possible, but those sounding in tort have to be tethered to the underlying tort in its traditional formulation.

There is a relatively well-established body of law that limits constructive discharge claims, and in Shepherd this Court was careful to recognize that precedent and to explain why the standard is what it is. Shepherd was a carefully balanced opinion that evaluated the important policy interests at stake when assessing who should be entitled to front and back pay damages notwithstanding the individual’s determination to leave a job. Those policy considerations include encouraging an employer to remedy, and remedy quickly, the complained of retaliation or discrimination from within, and encouraging the employee to do what is necessary and reasonable to stay employed. As we said in Shepherd, supra:

399*399 [A]n employee has the obligation to do what is necessary and reasonable in order to remain employed rather than simply quit. A trial court should consider the nature of the harassment, the closeness of the working relationship between the harasser and the victim, whether the employee resorted to internal grievance procedures, the responsiveness of the employer to the employee’s complaints, and all other relevant circumstances.

[174 N.J. at 28, 803 A.2d 611 (quoting Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420, 765 A.2d 217 (App.Div.2001)).]

For those reasons, courts look not at how the plaintiff has been damaged, psychologically or otherwise, but rather, assess objectively the conduct to which the plaintiff was subjected and the conditions under which the plaintiff was working. As DuPont concisely, and I believe appropriately, argued in this matter: “[F]or those policy considerations to have any meaning, the plaintiff must be objectively reasonable in his reaction to the retaliation, [that is,] objectively reasonable in deciding he can no longer endure working, before the court will let him cast blame on the employer and collect damages flowing from the termination of employment that he initiated.”

There is no rationale that would support a different analysis under CEPA than that which we recognized in Shepherd. Although the Act directs that the remedies be available “to the fullest extent possible,” N.J.S.A. 34:19-5, it does not suggest that they be expanded beyond their traditional formulation. Stripped to its essence, the keystone to the majority’s contrary conclusion, explained ante at 257-59, 20 A.3d at 392-93, is unsound.

Specifically, the majority’s analysis conflates proximate causation and the extent of damages.[3] In so doing, it unhinges the fundamental tort-law notion that a plaintiff is entitled to only those compensatory remedies that will make him whole in regard to the harms actually and proximately caused by defendant. See Caldwell v. Haynes, 136 N.J. 422, 433, 643 A.2d 564 (1994). After explaining that a person has a right to recover the entirety of his diminished earning capacity caused by another’s tortious conduct, the majority concludes that “[t]o the extent [defendant] proximately caused Seddon to suffer a mental injury incapacitating him from his former employment, he has `the right to recover damages for diminished earning capacity.'” Ante at 258-59, 20 A.3d at 393. The statement assumes the answer to the essential legal question: When has a defendant proximately caused a plaintiff to lose his employment and thereby suffer a diminished earning capacity?

We answered this question clearly in Shepherd, explaining that lost wages are caused by allegedly discriminatory or retaliatory conduct only when discharge, either actual or constructive, can be proven. In other words, where a plaintiff walks away from his employment, a defendant 400*400 has caused (and is liable for) the coincident loss of wages only if the defendant’s conduct was severe or pervasive enough to amount to constructive discharge.[4] CEPA does not purport to abrogate the basic and commonsense notion that when an employee voluntarily resigns or retires, the employee himself, and not the employer, has caused the cessation of paychecks.

Moreover, the majority’s reasoning rests on a fundamental flaw revealed through its baseball player analogy. The baseball player is allowed to recover as against a tortfeasor lost income as part of economic damages because common law tort concepts allow it. See Caldwell, supra, 136 N.J. at 433, 643 A.2d 564 (“An injured party has the right to be compensated for diminished earning capacity. The measure of damages for tort recovery encompassing diminished earning capacity can be based on the wages lost as a result of the defendant’s wrongdoing. That measure includes the value of the decrease in the plaintiff’s future earning capacity.” (citations omitted)); see also Restatement (Second) of Torts: Damages § 901 (1979) (“[W]hen there has been harm to earning capacity, the law can indemnify the plaintiff for pecuniary loss[.]”). However, until this Court’s decision in Pierce v. Ortho Pharmaceutical Corporation, no like tort concept allowed an employee to recover similar lost wages from a former employer. 84 N.J. 58, 65-66, 417 A.2d 505 (1980).

In Pierce, this Court, recognizing that the common law has “the capacity … to develop and adapt to current needs,” first created a common law cause of action in tort for “wrongful discharge when the discharge is contrary to a clear mandate of public policy.” Id. at 71-72, 417 A.2d 505; see also Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 102, 961 A.2d 1167 (2008) (“This Court first recognized a common law cause of action for retaliatory discharge when we decided Pierce in 1980.”); D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119, 927 A.2d 113 (2007) (“[W]e held [in Pierce] that an at-will employee, wrongfully discharged … has a common law cause of action against an employer.”). That alteration in the law reflected the reality that under the common law, employees were all at-will and had no right to lost wages following termination 401*401 of employment. As we explained in Tartaglia, supra,

[s]een in its historical context, Pierce created an avenue for an at-will employee, who otherwise had little, if any, means of redress for termination, to assert that his or her discharge was wrongful…. We viewed [Pierce’s] claim as being in the nature of constructive discharge and considered whether there were circumstances, apart from claims based on discrimination, in which termination of an at-will employee could be wrongful.

[197 N.J. at 104-05, 961 A.2d 1167.]

And, “we concluded that some non-discriminatory firings were nevertheless actionable.” Id. at 105, 961 A.2d 1167.

Of course, CEPA codified the Pierce remedy[5] and, hence, this cause of action is brought under that statutory remedy. But the majority’s misplaced reliance on tort law that permits a lost-earnings or diminished-earnings-capacity economic recovery as against a tortfeasor does not translate into support for relief in the circumstances of this present suit by plaintiff against his former employer, where constructive discharge was neither pled nor proved. In short, there is no common law avenue, outside of proving wrongful discharge or constructive discharge, for such economic damages to be awarded as against a former employer.

III.

As noted, plaintiff did not just fail to allege constructive discharge, he repeatedly disavowed it. As a result, the jury received no notice that plaintiff was claiming that he had been constructively discharged, like it received with respect to his co-plaintiff, Mr. Donelson, who pled constructive discharge and a CEPA violation (plus intentional infliction of emotional distress). Thus, the jury received no instruction on how to assess whether DuPont should be held responsible for plaintiff’s departure as it did with respect to Mr. Donelson’s constructive discharge claim. Nevertheless, over DuPont’s objection, plaintiff was permitted to introduce evidence concerning the damages that flow from a constructive discharge, namely the wages he would have earned had he not retired.[6] There was no basis for the jury to award plaintiff the economic damages that might stem from the termination of his employment because no claim alleging a wrongful termination of employment, nor instructions for assessing such a claim, had ever been put to the jury. In such a setting, the verdict was not properly reached and the Appellate Division was correct in setting it aside. See, e.g., Toto v. Princeton Twp., 404 N.J.Super. 604, 614-15, 962 A.2d 1150 (App.Div.2009) (rejecting unpled constructive discharge claim that was asserted through backdoor means of “giving it another name”).

IV.

In this matter, a constructive discharge claim was cloaked as a generalized CEPA retaliation claim. By camouflaging his constructive discharge allegation as a nondescript CEPA violation, plaintiff reaped the benefit of the more generous scope of 402*402 relief available for constructive discharge claims without enduring the more onerous burden of proof associated with that cause of action. Where plaintiff made a conscious choice not to plead constructive discharge, CEPA should not allow backdoor access to front and back pay damages asserted to accrue post-retirement. In my view, the majority errs in concluding that CEPA’s allowance for “other tort remedies” permits a CEPA plaintiff to receive a tort’s remedy merely by filing a CEPA action claiming an adverse employment action without meeting the ordinary test for the “other” tort whose remedy is invoked. CEPA’s goals are not advanced by creating a far lighter standard of proof than the one imposed for constructive discharge.

JUSTICE RIVERA-SOTO, abstaining.

I abstain for the reasons previously expressed in Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., L.P., 204 N.J. 569, 585-587, 10 A.3d 211 (2010) (Rivera-Soto, J., dissenting): although not “necessary,” a condition precedent specifically required by the New Jersey Constitution, N.J. Const. art. VI, § 2, ¶ 1, a judge of the Superior Court was temporarily assigned to serve on the Supreme Court, and that judge cast a vote that affected the outcome of this appeal.

For reversal/reinstatement/remandment— Chief Justice RABNER and Justices LONG, ALBIN and Judge STERN (temporarily assigned)—4.

For affirmance—Justices LaVECCHIA and HOENS—2.

For abstainment—Justice RIVERA-SOTO—1.

[1] The company’s correct legal name is E.I. du Pont de Nemours and Company.

[2] Because the jury rendered a verdict in favor of plaintiff, we view the facts in the light most favorable to him. See Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg’l Sch. Dist., 201 N.J. 544, 556, 993 A.2d 805 (2010) (citation omitted); see also Smith v. Cruse, 101 N.J.L. 82, 83, 128 A. 379 (E. & A. 1925) (“A judgment presupposes a finding of facts in favor of the successful party….”).

[3] DuPont manufacturers phosgene for use in the production of Kevlar (a “bulletproof vest fiber”) and Nomex (a “fire-retardant fiber”).

[4] Specifically, Seddon cited a lack of lighting, an absence of a safe place for employees to pull over during the stops, and the absence of lines designating appropriate stop areas.

[5] In 1984, a “leak at the Union Carbide chemical plant in Bhopal … killed 3,000 people and sickened thousands more.” Hari Kumar, India: Court Stands by Charges in Bhopal Leak, N.Y. Times, May 12, 2011, at A10.

[6] Dysphoria is defined as “[a] mood of general dissatisfaction, restlessness, depression, and anxiety.” Stedman’s Medical Dictionary 599 (28th ed. 2006).

[7] Seddon voluntarily dismissed the claims against Kaiser before trial. Joseph Donelson was also a plaintiff in this action. Seddon’s and Donelson’s cases were tried jointly before the same jury. The jury rejected Donelson’s claims. His case is not before us.

[8] Seddon voluntarily withdrew this claim before trial.

[9] Front pay refers to future lost wages accruing after a jury’s verdict, whereas back pay refers to lost wages already accrued as of that date. See Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 135, 735 A.2d 548 (1999); Baker v. Nat’l State Bank, 353 N.J.Super. 145, 158, 801 A.2d 1158 (App.Div.2002) (citations omitted).

[10] Notably, Seddon’s counsel stated that he would amend the complaint to allege constructive discharge if the trial court granted DuPont’s motion. Needless to say, that became unnecessary.

[11] The panel “recognize[d] that plaintiff’s claim for economic damages—arising from DuPont’s alleged retaliatory reduction in his opportunity to earn overtime compensation— is not affected by plaintiff’s failure to prove a constructive discharge.” Donelson, supra, 412 N.J.Super. at 35 n. 10, 988 A.2d 604. Nevertheless, the panel denied Seddon a new trial to determine damages for lost overtime for several reasons. Ibid. The panel maintained that the issue of lost overtime was disputed, the jury verdict did not specify whether its economic-damages award included lost overtime, and Seddon did “not claim that the loss of overtime pay entitle[d] him to a new trial.” Ibid.

[12] After hearing oral argument, the Court requested additional briefing to address the following question:

If proof of constructive discharge is an essential element of a CEPA claim for front and back pay, does the [Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 803 A.2d 611 (2002)] paradigm require modification to account for a case in which a plaintiff has been damaged, psychologically or otherwise, by his employer’s retaliatory acts and, as a result, obtains a disability retirement? If so, how should it be modified?

Because ultimately we decide that constructive discharge is not an element of a CEPA claim, this question is rendered moot.

[13] These statements were reprinted virtually verbatim by the Assembly State Government Committee in 2006. Assembly State Government Committee, Statement to Senate Bill No. 1886 (Jan. 5, 2006).

[14] See, e.g., D’Annunzio, supra, 192 N.J. at 123-25, 927 A.2d 113 (adopting LAD definition of “employee” for CEPA); Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447-48, 828 A.2d 883 (2003) (applying LAD’s continuing-violation theory to CEPA); Cedeno v. Montclair State Univ., 163 N.J. 473, 479, 750 A.2d 73 (2000) (treating public employee’s failure to disclose prior conviction similarly under CEPA and LAD); Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 416-17, 650 A.2d 958 (1994) (applying LAD standard of respondeat superior to CEPA).

[1] Because of CEPA’s election of remedies provision, see N.J.S.A. 34:19-8 (deeming filing of CEPA suit as election of remedies, effectively barring parallel litigation arising from common law theories), the breadth of the remedies, as a practical matter, must be at least coextensive with ordinary tort remedies.

[2] N.J.S.A. 10:5-1 to -49.

[3] For example, in discussing when an alleged tortfeasor has proximately caused an injured person to suffer a diminished earning capacity, the majority offers a baseball example typically used to illustrate the eggshell plaintiff rule, a maxim about the extent of damages and not about proximate causation. Ante at 258-59, 20 A.3d at 392-93. The example is typically utilized to show that a baseball player with a large salary might be entitled to tremendous damages if injured because of his idiosyncratic earning potential. However, proximate cause requires a different analysis, assessing not the degree of loss, but whether defendant’s conduct caused the loss in earning capacity. The majority fails to recognize that the baseball player may not recover his future earnings if he could have continued to play at the same level but chose voluntarily to retire from the sport.

[4] Federal courts have consistently followed this rule of causation, holding that to receive an award for lost wages, a plaintiff who walks away from his employment must prove constructive discharge. See, e.g., Lulaj v. Wackenhut Corp., 512 F.3d 760, 767 (6th Cir.2008) (“[T]he district court was correct to reduce, as a matter of law, the jury award for front pay to zero to conform to its finding of no constructive discharge.”); Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006) (“[A] successful hostile work environment claim alone, without a successful constructive discharge claim, is insufficient to support a back pay award. Put simply, if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue.” (footnote omitted)), cert. denied, 551 U.S. 1141, 127 S.Ct. 2985, 168 L.Ed.2d 720 (2007); Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir.2001) (“A victim of discrimination that leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive … back and front pay[.]”), cert. denied, 534 U.S. 1130, 122 S.Ct. 1070, 151 L.Ed.2d 973 (2002); Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir.2000) (“Because the jury rejected the Plaintiffs’ claims that they were constructively discharged, the district court did not err in concluding that they were not entitled to back or front pay.”); Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1219 (8th Cir. 1997) (“[I]n the absence of constructive discharge, a plaintiff is not `made whole’ by the equitable remedy of backpay.”); Jurgens v. EEOC, 903 F.2d 386, 389 (5th Cir. 1990) (“[I]n order for an employee to recover back pay for lost wages beyond the date of his retirement or resignation, the evidence must establish that the employer constructively discharged the employee.”).

[5] The common law action still exists as an alternate track by which a plaintiff may pursue relief; however, a plaintiff relying on CEPA exercises an election of the statutory remedy in lieu of the common law wrongful discharge action. See N.J.S.A. 34:19-8.

[6] Although plaintiff retired on disability pension, that does not suffice as proof that the employer caused a constructive discharge, at least not on this record where no such showing was made due to plaintiff’s pleading strategy. We note that plaintiff did plead an intentional infliction of emotional distress claim, but the jury did not award any pain and suffering damages.

Evaluating Whistleblower and Wrongful Discharge Claims

An employee cannot be discharged for “refusing to perform an act that is a violation of a clear mandate of public policy.”  See Common

A whistleblower is a person who exposes misconduct, alleged dishonest or illegal activity occurring in an organization
 

An employee is not compelled to perform illegal acts and generally cannot be disciplined for reporting them to a governmental entity.  Law Retaliatory Discharge of Employee for Refusing to Perform or Participate in Unlawful or Wrongful Acts, 104 A.L.R.5th 1.  See Diagostino v. Johnson & Johnson, 133 N.J. 516 (1993).  In evaluating whistleblower claims, the following criteria can use used :
1. Violation              Is the law or rule violation clear and what material shows that.
2. Complaint           Was a governmental agency contacted. 
3. Management      Was a complaint made to the Human Resources Department or management.
4. Performance       A company may defend the claim saying the employee’s performance was substandard.   Does that defense involve his participation in unlawful activities or other areas.
5. Damages            Was there psychological or other treatment. 
6. Consequences   Was the legal violation serious; what are the real or potential consequences. 

Law Office of Howard A. Gutman 230 Route 206, Suite 307 Flanders, New Jersey 07836 (973) 598-1980 (tel) (973) 531-4110 (fax) New York Office 315 Madison Avenue, Suite 901 New York, New York 10165 email howardgutman@aol.com