Tag Archive: Whistle Blower

Apr 12

Blowing the Whistle: An Employment Law Perspective on the Rutgers Basketball Situation, Part Two

 

Photo Credit: The Fayj


Photo Credit: The Fayj

In Part One of this two-part series on the Rutgers basketball situation, we explored potential employment law issues surrounding Mike Rice and his actions.  In part two, we will look at one of the other major players in the Rutgers basketball story – Eric Murdock.  It should be noted that Murdock has filed a lawsuit claiming, among other things, that he should be afforded protection as a whistle-blower[1].  Although this piece looks at the same statute, it is in no way meant to demonstrate whether or not Murdock has a claim or to comment on the merits of his claim.  Rather, the purpose of this piece is to provide an overview of the statute and relevant case law, and to explain what needs to be shown in order for a claim to be successful.

For those not familiar with the events that have transpired at Rutgers University, here is a brief overview of the facts that have been reported as they relate to Eric Murdock.  (A comprehensive discussion of the overall incident can be found in Part One.)  Eric Murdock is the former director of player development for the Rutgers men’s basketball team[2].  The accounts of the circumstances under which Murdock left the university vary.  Murdock claims he raised concerns with the university regarding the behavior exhibited by Coach Mike Rice during practices[3].  He further contends that the evidence he presented was ignored for as long as six months[4].  Murdock believes that he was later targeted for termination because he raised concerns[5].  Rice allegedly told Murdock he was let go because he was insubordinate[6].  The charge of insubordination arises from a disagreement between the two regarding Murdock attending another event rather than an event the basketball team was conducting[7].  Rutgers contends that Murdock was not, in fact, terminated, but rather that his contract was not renewed upon its expiration[8].  Murdock presented video evidence of Rice’s behavior during practices to Rutgers in November[9].  The Federal Bureau of Investigations (FBI) is now looking into whether, along with the video footage, Murdock presented the university with an ultimatum[10].  Murdock’s lawyer attempted to settle with the university for $950,000[11].  Murdock has now filed a lawsuit claiming he was wrongfully terminated from his position[12].

New Jersey is an employment at-will state[13].  This means employers are free to terminate employees for any reason or no reason[14].  There are, however, protections in place to prevent workers from being fired for certain reasons.  One such protection prevents employers from removing employees who qualify as whistle-blowers.  This class of employees is protected under the Conscientious Employee Protection Act (CEPA)[15].

Under CEPA, employers are prohibited from taking retaliatory action against an employee who reports activity undertaken by the employer if the employee “reasonably believes” the activity is contrary to “a law, or a rule or regulation promulgated pursuant to law[16].”  An employee is also protected if he or she “reasonably believes” the activity being reported is “fraudulent or criminal” in nature[17].  Similarly, if an employee is being asked to participate in activity that he or she “reasonably believes” is against the law, is “fraudulent or criminal” in nature, or which “is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment,” the employee is free to refrain from participation without retaliation[18].  After reporting activity or failing to participate in activity described, supra, an employee may not be terminated, suspended, or demoted, among other forms of adverse employment action, as a result of reporting or failing to participate[19].  An individual who thinks he or she has been the victim of retaliation and should have whistle-blower status can file a lawsuit against his or her former employer within one year of the adverse action[20].  The employee, if his or her claim is successful, may be eligible for various forms of relief, including, but not limited to, an injunction, reinstatement, and “compensation for all lost wages, benefits and other remuneration[21].”  The employer may also be fined up to $10,000 for a first violation and up to $20,000 for additional violations[22].

In Dzwonar v. McDevitt[23], the Supreme Court of New Jersey considered the application of CEPA in a case where the employee of a union believed she had been fired for raising concerns about the union curtailing the ability of its members to participate in union activities[24].  The court held that in order for an employee to prevail on a CEPA claim, he or she must show 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 a law, or a clear mandate of public policy; (2) he or she performed a ‘whistle-blowing’ activity described [in the statute]; (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[25].”  The employee bringing the claim does not have to show that the law was actually broken, only that he or she reasonably believed that to be the case[26].  The trial court, however, must be able to make a connection between the conduct and a specific law or regulation[27].

Recently, the Appellate Division of the Superior Court revisited CEPA claims and reiterated the requirements that must be met[28].  The court also made clear that CEPA and its provisions are meant to secure “‘broad protections against employer retaliate[ion] for workers whose whistle-blowing activities benefit the health, safety and welfare of the public[29].’”

It is clear from the statue and case law that in order for Murdock to be successful on his CEPA claim against Rutgers University, he will have to demonstrate that he had provided information regarding behavior on the part of Mike Rice, which Murdock reasonably believed was contrary to a law or regulation, to the university.  But more than that, the court must be able to clearly and concretely draw a connection between Rice’s behavior and a law or regulation.  The next hurdle he will have to overcome is demonstrating that he was, in fact, terminated and not that the university simply failed to renew his contract, as is their contention.  In the alternative, he will have to show that the failure to renew his contract was an adverse employment action under the meaning of retaliatory action in CEPA.  Finally, if he is able to show he undertook whistle-blowing activity to bring to light a violation of the law or a regulation and that the university took retaliatory action against him, Murdock must then draw a direct link between the adverse action and his voicing of concerns regarding the coach’s behavior.

Although New Jersey is an at-will employment jurisdiction, there are still protections in place for certain classes of employees, including those who qualify for whistle-blower status under CEPA.  Now that Eric Murdock has filed a lawsuit claiming whistle-blower status for his role in the Rutgers basketball situation, it will be interesting to see how the case plays out.

 


[1] Christian Red and Michael O’Keeffe, Ex-Rutgers ass’t coach Eric Murdock files wrongful termination suit against University, New York Daily News, April 5, 2013, available at http://www.nydailynews.com/sports/college/ass-coach-hits-rutgers-lawsuit-article-1.1308948.

[2] Associated Press, Mike Rice fired from Rutgers after abuse video goes public, Newsday, April 3, 2013, available at http://www.newsday.com/sports/college-basketball/mike-rice-fired-from-rutgers-after-abuse-video-goes-public-1.4998367.

[3] Red and O’Keeffe, supra at note 1.

[4] Id.

[5] Associated Press, Report: FBI eyes possible extortion at Rutgers, USA Today, April 7, 2013 available at http://www.usatoday.com/story/sports/ncaab/2013/04/07/fbi-extortion-rutgers-mike-rice-eric-murdock/2061757.

[6] Red and O’Keeffe, supra at note 1.

[7] Id.

[8] ESPN, Rutgers AD Time Pernetti resigns, ESPN, April 7, 2013, available at http://www.espn.go.com/new-york/mens-college-basketball/story/_/id/9137089/tim-pernetti-rutgers-scarlet-knights-athletic-director.

[9] Red and O’Keeffe, supra at note 1.

[10] Associated Press, supra at note 5.

[11] Red and O’Keeffe, supra at note 1.

[12] Id.

[13] New Jersey State Department of Labor (NJDOL), Wage and Hour Compliance FAQs, accessed April 2013, available at http://www.lwd.dol.state.nj.us/labor/wagehour/content/wage_and_hour_compliance_faqs.html.

[14] Id.

[15] N.J. Stat. 34:19-1-8.

[16] N.J. Stat. 34:19-3(a)(1).

[17] N.J. Stat. 34:19-3(a)(2).

[18] N.J. Stat. 34:19-3(c).

[19] N.J. Stat. 34:19-2(e).

[20] N.J. Stat. 34:19-5.

[21] Id.

[22] Id.

[23] 177 N.J. 451 (2003).

[24] Id at 460.

[25] Id at 462 (brackets added), citing Kolb v. Burns, 320 N.J. Super. 467, 476, 727 A.2d 525, 530 (App. Div. 1999).

[26] Id at 462-63, citing Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522, 792 A.2d 494, 497-98 (App. Div.), certify. Denied, 174 N.J. 40, 803 A.2d 636 (2002).

[27] Id at 463.

[28] Racanelli v. County of Passaic, 417 N.J. Super. 52 (Sup. Ct. of N.J. 2010).

[29] Id at 56, quoting Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239, 901 A.2d 322 (2006) (citation and internal quotations omitted).