Whistleblowing on a customer is NOT protected activity in NJ

In New Jersey, a private employer may not fire an employee who objects to or refuses to participate in any activity that the employee reasonably believes is illegal or would endanger public health, safety, or welfare. This is codified in New Jersey’s Conscientious Employee Protection Act (CEPA).

The typical CEPA claim involves an employee who alleges that he/she was fired after complaining directly to management about some business-related conduct that the employee thought was legally or morally wrong. But what about when an employee confronts a customer, on the employer’s premises, about something the employee reasonably believes that the customer has done wrong? If the employee is later fired, does the employee have a viable CEPA claim?

Find out, after the jump…

This issue recently came up in Aviles v. Big M, Inc. In Aviles, the plaintiff, a female manager at a women’s apparel store, allegedly confronted a customer whom the plaintiff believed was shoplifting. What happened next is mostly “she said/she said.” According to the plaintiff, the confronted customer denied any wrongdoing and permitted the plaintiff to search her handbag. The customer, however, testified that the plaintiff tried to grab her handbag to search it. Thoroughly embarrassed, she contacted the plaintiff’s manager to complain. Ultimately, the defendant, which had a written loss-prevention procedure for managers to follow if they suspect that a customer is shoplifting, fired the plaintiff because it believed that the plaintiff had deviated from that procedure. Plaintiff subsequently sued under CEPA.

CEPA does not cover customer confrontations or reports.

CEPA is an exception to the at-will employment doctrine and was designed to protect those who have been fired in violation of a clear mandate of public policy. CEPA’s purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. A plaintiff who asserts a CEPA claim must prove four elements:

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 the CEPA;
3. An adverse employment action was taken against the him or her; and
4. A causal connection exists between the whistle-blowing activity and the adverse employment action.

In Aviles, the plaintiff confronted a customer of her employer who she believed was shoplifting. The plaintiff argued that this is no different than confronting a co-worker who is engaged in illegal activity, which courts in NJ have recognized is protected activity under CEPA. However, the plaintiff cited no authority to the court to support her customer-complaint position. Furthermore, the court noted that a plaintiff’s job duties cannot be considered whistleblowing conduct. Moreover, the plaintiff did not allege that there was anything wrong her employer’s policy on confronting shoplifters, a policy that the plaintiff claims she followed.

For these reasons, the court in Aviles denied the plaintiff’s CEPA claim.

Customers are what keep business viable. Aviles teaches that businesses should educate, train, and remind employees that written policies and procedures for dealing with customers must be followed to the letter. If an employee has any questions about these rules, that employee should ask a supervisor. Any deviation from the rules must first be blessed by a supervisor. Otherwise, discipline should follow.