A New Jersey employment lawyer representing the employee was dealt a big victory on Tuesday. The Superior Court of New Jersey, Appellate Division, reversed a no-cause verdict in a whistleblower case brought under New Jersey's Conscientious Employee Protection Act (CEPA). The Appellate Division ruled that the trial court should have been bifurcated the case and that after-acquired evidence of the employee's wrongdoing should not have been presented to the jury while it was considering liability. The Appellate Division reasoned that the after-acquired evidence should not have been presented to the jury during the liability stage of the case due to the possible prejudicial effect. In Redvanly v. Automated Data Processing, A-4082-06, the New Jersey Appellate Division granted a new trial to an employee who was let go three weeks after allegedly telling her supervisor that she intended to disclose in an upcoming internal control audit that ADP had overbilled clients, manipulated quality-survey scores and engaged in other improper conduct. The net result of the opinion is that the trial court cannot allow the jury to hear the after-acquired evidence during the liability stage of the trial.
The New Jersey court's ruling will likely increase pre-trial motions by New Jersey employment lawyers seeking to bifurcate whistleblower case where the defense alleges after-acquired evidence as a defense. Under federal and New Jersey state law, an employer may be able to prevent an employee from seeking economic damages if the employer can prove that it discovered evidence on the employee after the employee was terminated that would have caused the employer to terminate that employee. An employer invoking the after-acquired evidence defense must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds if the employer had known of it at the time of the discharge.
The Appellate Division did not rule whether the trial court could allow the after-acquired evidence to be presented at the damages stage of the trial. The Appellate Division ruled that the trial court should be guided on this issue in accordance with its opinion.
