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Performance Appraisals: New Jersey

Performance Appraisals requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Christine Zebrowski, Overbrook Law LLC

Summary

  • Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to performance appraisals, so do the nondiscrimination requirements of New Jersey law. See The New Jersey Law Against Discrimination.
  • New Jersey's Conscientious Employee Protection Act (CEPA) prohibits retaliation against an employee who blows the whistle or who threatens to do so, with regard to improper, deceptive, harmful or illegal conduct by his or her employer, or conduct which relates to improper patient care by a health care provider. Retaliation includes an adverse employment action, e.g., a negative performance appraisal. See New Jersey's Whistleblower Act: the Conscientious Employee Protection Act (CEPA).
  • Employers are protected against defamation claims when providing references on former employees. See Defamation, Libel and Slander.
  • An employer may be held liable for an employee's wrongful acts if the employer knew or had reason to know of the risk the employment created. See Negligent Retention or Supervision.

The New Jersey Law Against Discrimination

Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to performance appraisals, so do the nondiscrimination requirements of New Jersey law. See also Employee Management > EEO-Discrimination: New Jersey.

The New Jersey Law Against Discrimination (NJLAD or LAD) is considerably broader than federal antidiscrimination law. +N.J. Stat. §10:5-1.

As a result, New Jersey is known as a pro-employee state with respect to the protection of employee rights in the work environment.

The LAD allows an employee to file a charge of discrimination directly in Superior Court without having to file a complaint with the New Jersey Division on Civil Rights. +N.J. Stat. § 10:5-12.

The LAD defines handicap and disability broadly and applies to all employers, regardless of the number of employees.

The LAD also prohibits retaliation against employees for engaging in protected activity. Available remedies include:

  • Equitable relief;
  • Recovery for economic losses;
  • Compensatory damages;
  • Punitive damages; and
  • Attorney fees.

The LAD includes the following protected classes:

  • Race;
  • Creed;
  • Color;
  • National origin;
  • Ancestry;
  • Age (ages 70 and under);
  • Marital status;
  • Civil union status;
  • Domestic partnership status;
  • Affectional or sexual orientation;
  • Genetic information;
  • Sex, including pregnancy or breastfeeding;
  • Gender identity or expression;
  • Disability;
  • Nationality or atypical hereditary cellular or blood trait of any individual;
  • Because of the liability for service in the Armed Forces of the United States; and
  • Because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.

Statute of Limitations Under the LAD

Employees may file an administrative complaint with the New Jersey Division of Civil Rights or may proceed directly to Superior Court. An administrative complaint must be filed within 180 days after the alleged act of

For a court claim, the statute of limitations is two years, although New Jersey recognizes the continuing violation doctrine, which can extend the filing deadline beyond the initial statute of limitations.

New Jersey's Whistleblower Act: the Conscientious Employee Protection Act (CEPA)

New Jersey's Conscientious Employee Protection Act (CEPA) prohibits retaliation against an employee who blows the whistle or who threatens to do so, with regard to improper, deceptive, harmful or illegal conduct by his or her employer or conduct which relates to improper patient care by a health care provider. +N.J. Stat. § 34:19-3.

Retaliation includes an adverse employment action, e.g., a negative performance appraisal.

Protected activity also includes providing information to or testifying in a government agency hearing or investigation, and objecting to or refusing to participate in any activity, policy or practice which the employee reasonably believes is:

  • A violation of law;
  • Harmful or deceptive; or
  • Relates to improper patient care by a health care provider.

The CEPA applies to public sector and private sector employers. Available remedies include:

  • Equitable relief;
  • Recovery for economic losses;
  • Compensatory damages;
  • Punitive damages, which may be capped; and
  • Attorney fees.

Employees can establish a CEPA retaliation claim by showing that:

  • He or she engaged in protected conduct;
  • The employer took retaliatory action against the employee immediately after or close in time to the protected conduct; and
  • There is a causal connection between the two.

Protected conduct does not include complaints that:

  • Are vague;
  • Concern minor workplace misconduct;
  • Relate to generalized workplace discontent.

See Battaglia v. UPS +214 N.J. 518.

"Watchdog" employees - those 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 the standard of care - are covered under CEPA. In Lippman v. Ethicon, a unanimous New Jersey Supreme Court held that CEPA's protections extend to the performance of regular job duties by watchdog employees. +2015 N.J. LEXIS 791. The Court stated that unless and until the legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protections, there can be no additional burden imposed on watchdog employees seeking CEPA protection.

Employees have up to one year to file a court action for retaliation under CEPA. However, the continuing violation exception applies to CEPA actions, which can extend the statute of limitations beyond the one-year period.

There is no requirement to file an administrative charge before proceeding to court.

Employers facing a potential action under the CEPA should consult with counsel immediately.

Defamation, Libel and Slander

A cause of action for defamation in New Jersey requires proof of three elements:

  • Asserting a false and defamatory statement concerning another;
  • The unprivileged publication of that statement to a third party; and
  • Fault amounting at least to negligence. See, e.g., DeAngelis v. Hill, +180 N.J. 1 (2004).

An employee must also prove damages. An employer may assert truth as a full defense to a defamation claim.

Employers are protected against defamation claims when providing references on former employees.

New Jersey extends a qualified privilege to an employer who responds in good faith to the specific inquiries of a third party regarding the qualifications of an employee.

To overcome the qualified privilege, a claimant must establish that the publisher knew the statement to be false or acted in reckless disregard of its truth or falsity, i.e., the employee must show malice on the part of the employer. Erickson v. Marsh & McLennan Co., +117 N.J. 539 (1990).

Employees have one year to file claims of defamation, libel or slander in New Jersey. +N.J. Stat. §2A:14-3.

In addition, New Jersey health care entities enjoy job reference immunity under certain circumstances. +N.J. Stat. § 26:2H-12.2c.

Negligent Retention or Supervision

An employer may be held liable for an employee's wrongful acts if the employer knew or had reason to know of the risk the employment created. See Recruiting and Hiring > Negligent Hiring: New Jersey.

For example: In the case of Doe v. XYC Corp., +382 N.J. Super. 122 (App. Div. 2005), the Court found that the employer had a duty to investigate and respond when it knew or had reason to know that an employee was accessesing web sites featuring child pornography from company computers.

Future Developments

There are no developments at this time. Continue to check Xpert HR regularly for the latest information on this and other topics.