The opinion of the court was delivered by PRESSLER, J.A.D.
This appeal raises novel and significant questions as to the nature of the remedies available to an employee who has been discharged or otherwise discriminated against by his employer in retaliation for his pursuit of workers' compensation benefits. More particularly, we are here called upon to interpret N.J.S.A. 34:15-39.1 et seq., which speaks to employer retaliation and to determine the remedial scope of that legislation, the manner in which it was intended to be implemented, and whether or not a judicially cognizable cause of action for compensatory and punitive damages based upon such retaliation is created by or exists independently of that enactment.
The problems with which we are now confronted have reached us by way of a circuitous and markedly unproductive procedural route which is symptomatic of the substantive and procedural
Plaintiff Jo Ann Lally was, in 1975, an employee of defendant Copygraphics, a division of United States Printing Ink Corporation. She alleges that in March of that year she sustained minor injuries of her right eye and left foot in a work-connected accident. It is her further allegation that when she presented to her employer her bills for her medical treatment, she was advised that if she persisted in making "this kind of trouble" by attempting to obtain workers' compensation benefits, she would
Shortly before the scheduled trial of the action defendant moved for dismissal of the complaint on the ground that it failed to state a claim upon which relief could be granted. R. 4:6-2(e). The trial judge, in considering the motion, noted that the New Jersey Administrative Code sets forth a procedure for the processing of discrimination complaints, providing for the filing, in prescribed form, of a complaint pursuant N.J.S.A. 34:15-39.1 with the Director of the Division of Workers' Compensation, N.J.A.C. 12:235-11.1 to 11.3; an investigation thereof by the Division, N.J.A.C. 12:235-11.4, and an authorization to the Commissioner of the Department of Labor and Industry, upon receipt of the complaint and investigation results, to "take such action pursuant to N.J.S.A. 34:15-39.1, and so forth, as he deems necessary," N.J.A.C. 12:235-11.5.
Relying on these Code provisions, the trial judge concluded that N.J.S.A. 34:15-39.1 et seq. and its implementing rules were both substantively and procedurally preemptive and that exclusive jurisdiction to deal with plaintiff's grievance accordingly resided in the Director of the Division of Workers' Compensation, Department of Labor and Industry. He accordingly transferred plaintiff's claim to the Director "for appropriate action under the administrative code" and expressly limited her right to damages to those prescribed by N.J.S.A. 34:15-39.1.
Some months following her submission plaintiff received a letter over the signature of the designee of the Commissioner of Labor and Industry, purporting in this cryptic fashion, to dispose of her complaint:
Confronted with the anomaly of the court regarding the agency as exclusively empowered to grant compensatory relief and the agency regarding the court as exclusively empowered to do so, plaintiff's attorney sought further clarification from the Commissioner. The response of his designee left no doubt that under his construction of the statute, compensatory relief could, despite the remedial tenor and jurisdictional implications of the afore-cited regulations, come only from a court. His letter of clarification offered this explanation:
Having been left without the recourse of pursuing a remedy by the jurisdictional deference of the court and the agency to each other, plaintiff appealed both from the court's order of transfer and from the Commissioner's refusal to proceed with the merits of her complaint. We have concluded, for the reasons hereafter set forth, that the most rational solution to this impasse consistent with apparent legislative intent and the public policy sought to be advanced by the anti-retaliatory statute is to hold that an employee has a judicially cognizable cause of action for compensatory and punitive damages against his employer for retaliatory discrimination and that such action is not preempted by any primary or exclusive agency jurisdiction or by any other provision of the statutory complex.
Articulation of our reasons for so concluding requires a brief foray into historical overview. The evil to which N.J.S.A. 34:15-39.1 et seq. is addressed surfaced, at least as a matter of judicial attention, relatively late in the development of the law of workers' compensation, and the proliferation of decisional law dealing with the remedial consequences of retaliatory discrimination is a phenomenon of the last decade only. Although the
The first of the reported cases finding an employee's right of action is the Indiana decision in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (Sup.Ct. 1973). In that jurisdiction, like South Carolina and unlike Missouri, the state legislature had not addressed retaliatory discrimination in any way — either civilly, criminally or administratively. The court predicated its recognition of a cause of action on considerations of public policy, noting first that the workers' compensation law
It then reasoned that since retaliatory discharge is "a wrongful, unconscionable act," which "should be actionable in a court of law," a discharge so motivated and in contravention of an employee's exercise of a statutorily created right must be regarded as an exception to the general rule permitting at-will discharge of an employee unprotected by contract or tenure job rights.
Just as Frampton responded to the "no-statute" rationale underlying the legal and factual complex in Raley, so did the Illinois Supreme Court respond to the preemptive criminal statute rationale of Christy. In Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), the court rejected the argument that the legislatively-created criminal sanctions for retaliatory conduct evinced a legislative intent that such sanctions be exhaustive of the employer's answerability for such conduct to the exclusion of a private remedy available to the employer in a civil action. To the contrary, the court reasoned persuasively from the premise that "retaliatory discharge is offensive to the public policy of this State as stated in the Workmen's Compensation Act," and concluded that
Jurisdictions thereafter recognizing the employee's civil cause of action for compensatory and punitive damages for retaliatory conduct have done so in the absence of any legislative expression at all by generally adopting the Frampton rationale and, where a criminal or quasi-criminal statute has rendered the conduct unlawful and subject to penal sanction, by generally adopting the Kelsay rationale. See Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (Ct.App. 1976); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (Sup.Ct. 1978); Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App. 1976). See, also, Annotation, "Workmen's Compensation: Recovery for Discharge in Retaliation for Filing Claim," 63 A.L.R.3d 979 (1975), and later case service. And see Blumrosen, "The Right to Seek Workmen's Compensation," 15 Rutg.L.Rev. 491 (1961).
Were the legislative situation in New Jersey similar to that in either Frampton or Kelsay, our task would be a relatively simple one, and the road to solution, if not well-trod, then at least marked with helpful signposts. Were there no legislation at all, we would be encouraged to follow Frampton not only by our general approval of its rationale but also by our recent recognition in another context that the at-will employment rule must yield to countervailing "clear and well-defined public policy and substantial violations thereof." Pierce v. Ortho Pharmaceutical Corporation, 166 N.J.Super. 335, 342 (App.Div. 1979), certif. granted 81 N.J. 266 (1979). And if we had a statute providing only for criminal or quasi-criminal sanctions, our determination
See, applying this section of the Restatement draft, Bortz v. Rammel, 151 N.J.Super. 312 (App.Div. 1977), certif. den. 75 N.J. 539 (1977).
The impediment to our simply opting to follow the Frampton-Kelsay line of authority is the singular provision of the New Jersey statutory complex purporting to create and prescribe a compensatory remedy for the employee-victim. Analysis, however, of the effect of that provision on the employee's potential tort or tort-like remedy requires, preliminarily, careful parsing of this legislation, particularly in light of the various opposing contentions before us as to what it means in each of its parts and in the sum of its parts.
The first sentence of N.J.S.A. 34:15-39.1 constitutes a legislative declaration that retaliatory discrimination by an employer against an employee who seeks to obtain workers' compensation benefits is unlawful. The second sentence of that
N.J.S.A. 34:15-39.2, standing alone, also presents no constructional problem. It is the familiar device of the imposition by an administrative agency of a civil penalty enforceable by summary proceeding in the Superior Court. See N.J.S.A. 2A:58-1 et seq.; R. 4:70-1. And see, generally, Sawran v. Lennon, 19 N.J. 606 (1955); Dept. of Cons. and Eco. Dev. v. Scipio, 88 N.J.Super. 315 (App.Div. 1965), certif. den. 45 N.J. 598
Thus far we have before us the entirely unexceptionable scheme of the creation of a disorderly persons offense by N.J.S.A. 34:15-39.1 and the complementary alternative provision of N.J.S.A. 34:15-39.2 for an administratively-imposed civil penalty. The question then, is to determine how and where in this scheme the private compensatory remedy provided for by the concluding sentence of the disorderly persons section fits. This is the sentence which, as we have noted, stipulates that
The Attorney General takes the position that placement of this provision in the disorderly persons section of the statute evinces a legislative intent that this private remedy of a patently civil nature be imposed as part of the judgment of conviction entered by a court of limited jurisdiction. He supports this construction by pointing out the provision of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:43-3(e), which authorizes inclusion in the judgment of conviction of a requirement of monetary restitution by the defendant to the victim of his crime. While it is true that that section of the Code provides for a broad range of restitutionary relief for the victim of crime, we are nevertheless persuaded that it is wholly inapposite and inapplicable here. First, enactment of the compensatory provisions of N.J.S.A. 34:15-39.1 long predated the Code. Prior to the Code's adoption it was clear that while a requirement that the defendant make restitution to the victim was a permissible special condition of probation, it was not an independently
Having discarded that alternative reading of the statute, we are left with two possibilities — either that the Legislature by this provision intended to create a quasi-judicial administrative proceeding in which the employee might seek compensatory relief or that it intended to announce the availability to the employee of a judicially cognizable tort or tort-like action limited, in respect of scope of relief, to recovery of loss of wages and reinstatement. We have concluded from the available indicia of statutory construction and general administrative law principles that the creation of an administrative proceeding is more likely consonant with legislative intent.
As a constructional matter, we note that the second section of the statute, N.J.S.A. 34:15-39.2, expressly authorizes the Commissioner of Labor and Industry to impose a civil penalty in addition to other measures against the employer provided for by the act. That provision is clearly susceptible to the reading that such civil penalty is imposable in addition to such other measures which he, the Commissioner, may take under the act. Since obviously he cannot conduct a disorderly
The Commissioner apparently declined to exercise quasi-judicial jurisdiction here for the reason, as explained in his clarifying letter to plaintiff heretofore adverted to, that in an unreported opinion the Chancery Division of the Superior Court had held that he had neither the power of reinstatement nor of awarding back pay. We do not, however, perceive any legal basis for such a conclusion. Back pay awards and reinstatement are both remedies which are traditionally within the enforcement power of administrative agencies charged with supervision and regulation of various aspects of the employment relationship
For the reasons herein stated we conclude that the effect of the retaliatory discrimination act is to provide three separate alternative and nonexclusive routes where such claims of discrimination are made. A complaint may be filed and proceeded with in a court of limited criminal jurisdiction charging the violating employee with a disorderly persons offense. An administrative penalty proceeding may be initiated by the Commissioner of Labor and Industry. And an employee may file a complaint for compensatory relief with the Commissioner to be proceeded with in quasi-judicial fashion.
Having found the availability to an employee of an administrative remedy, we address the final question before us, and that is whether the availability of such a remedy excludes a right of judicial action for both compensatory and punitive
We have concluded, moreover, that the administrative remedy is not necessarily adequate and therefore that the judicial remedy must be deemed to coexist, with the consequence that the employee has the option of proceeding either judicially or administratively. First, we regard the policy of the retaliatory discrimination act as one so firmly grounded in the public interest as to require assiduous protection and enforcement.
In summary, it is our holding that an employee who claims to have been the victim of retaliatory discrimination, in
The order of the Law Division transferring the complaint to the Commissioner of Labor and Industry is reversed and the matter remanded for further proceedings on the merits. The appeal from the action of the Commissioner of Labor and Industry is dismissed as moot.
ANTELL, J.A.D. (dissenting).
The import of N.J.S.A. 34:15-39.1 is threefold: it (1) declares it unlawful for any employer to discharge "or in any other manner discriminate against" an employee for seeking workers' compensation benefits or for testifying in a workers' compensation proceeding; (2) subjects an offending employer to a $1,000 fine and 60 days imprisonment; (3) mandates restoration of the aggrieved employee to his employment and compensation for lost wages. Supplementing this section, § 39.2 provides that as an alternative to any other sanctions the Commissioner of Labor may recover a penalty of up to $1,000 for any violation by way of a summary action "in any court of competent jurisdiction."
My colleagues hold that in addition to the foregoing remedies and sanctions an aggrieved employee may also pursue the further remedy of a common-law action for compensatory damages over and above lost wages and for punitive damages. They also conclude that the remedies of job restoration and compensation
At common law an employer was free to discharge an employee with or without cause in the absence of an agreement to the contrary. English v. College of Medicine & Dentistry of N.J., 73 N.J. 20, 23 (1977). Exceptions to this rule have been recognized where sound public policy required, and there is no doubt as to the socially valid policy underlying the statute before us in securing the right of injured workers to seek compensation without fear of reprisal. Beneficent though the legislation may be, however, it is by no means free of troubling consequences. It encompasses, for example, the action of an employer who refuses to continue in his employ an employee whom he honestly believes has filed a fraudulent claim, or one whose frequent accidents and claims result in unreasonable costs to the employer and absenteeism which impairs the operation of the employer's business. Nor are we concerned only with large industrial employers. The remedy of job restoration is also made applicable to small-scale employments, entailing close relations even though in equity a court will not compel the continuation of an obnoxious personal relationship. See Sarokhan v. Fair Lawn Memorial Hospital, 83 N.J.Super. 127, 133 (App.Div. 1964); 42 Am.Jur.2d, Injunctions, §§ 101, 102. Indeed, the family-run neighborhood shop, the single professional person who hires a secretary, and the homemaker who engages a single domestic worker once a week are also employers within the meaning of the statute. Furthermore, discrimination cases, whether against large or small employers, are difficult to defend, and once an employee claims compensation or testifies in a compensation proceeding he thereby acquires privileged status so that the employer may discharge, "or in any other manner" discriminate against, him (such as by changing his job assignment) only at peril of facing all the sanctions and remedies of the statute. As
The foregoing comments are not offered as arguments against the statute or its underlying salutary policy, but only to demonstrate that the choices with which the Legislature was confronted were hardly between undiluted right and wrong. They were hard choices, and clearly made with the understanding that protection of the statutory policy would be achieved in many cases by compromising other cherished values. The Legislature has made its judgment, which must be given effect. But in deliberate fashion it chose to implement this with remedies and sanctions in language which leaves no room for construction. In weighing the relevant considerations, it determined for the first time that such an employment practice is unlawful and provided, for violation thereof, the private remedy of job restoration and reimbursement of lost wages. The lawmakers allowed this much, but no more. Had they intended to allow the additional remedy of all compensatory and punitive damages, this could easily have been done, and it is fundamental that what the Legislature omits the courts are not free to supply. Craster v. Board of Commissioners, Newark, 9 N.J. 225, 230 (1952); Hoffman v. Hock, 8 N.J. 397, 409 (1952). Although, as the majority holds, the statutory fines and penalties may be "of insufficient financial moment to act as a deterrent", and the program of compensatory and punitive damages which it has created will be more effective than that "envisioned by the statute", these are not judgments which courts are free to make. If the statutory
In arriving at its result the majority hypothesizes cases in which the discharged employee will find reemployment without delay, so that absent the threat of punitive damages the employer will be undeterred from committing the unlawful retaliatory firing. The fault I find in this logic lies in the fact that at the time of firing the employer cannot foretell when or if the employee will find new employment. He knows only that he will be answerable for job restoration and all lost wages in addition to the threat of fines and imprisonment. Therefore the availability of additional relief in the form of punitive damages is unnecessary.
Cases relied on by the majority from outside jurisdictions are of little help, since each turns on its own particular factual circumstances and the statutory enactments addressed. But they are vitally distinguishable from this case, however, in that none involved statutes which provided so complete a private remedy to the aggrieved employee as ours. Without attempting an exhaustive catalogue thereof, it is clear that they rest on findings that there was no statutory remedy, or that the statute contained purely penal sanctions which gave no private relief to the employee. Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (Sup.Ct. 1973); Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (Ct.App. 1977); Kelsay v. Motorola, Inc., supra; Raden v. City of Azusa, 158 Cal.Rptr. 689, 97 Cal.App.3d 336 (D.Ct.App. 1979).
Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App. 1976), differs from this case in that recovery of damages was allowed under a statute which prohibited discriminatory discharges and which specifically created liability "for reasonable damages suffered by an employee as a result of the violation." (Id. at 113).
Although my colleagues are satisfied that the common-law cause of action "would clearly exist" in New Jersey even without the statute, a vital contrast between the Brown case and this lies in the fact that no New Jersey court had ever recognized such a right of recovery. Therefore the majority view that, because the Legislature did not "explicitly express such an intent," it cannot say that the statutory remedy is exclusive, finds no support either in logic or by analogy with Brown. The Legislature could not be expected to declare its remedy exclusive of all others when none other even existed.
As to the majority's holding that the employee's private remedy of job restoration and reimbursement of wages may be had in an administrative proceeding, this is nowhere suggested by the language of the statute. I cannot reconcile the majority's view that the Commissioner "obviously ... cannot conduct a disorderly person proceeding" with its conclusion that he may engage in the "adjudication of claims for the stipulated compensatory relief." The authority for neither is articulated in the act. That § 39.2 of the statute authorizes the Commissioner to sue in a summary proceeding for the recovery of a penalty does not imply that he may grant legal and equitable remedies. The right of job restoration constitutes mandatory injunctive relief and is subject to the entire range of equitable defenses which lie beyond the expertise of the Department of Labor. Nothing in the enactment reposes equity powers in this administrative agency.
But of much greater importance, the Commissioner of Labor may not adjudicate these claims for the simple reason that he
Furthermore, a court should not find authority in an administrative agency "to issue various types of affirmative remedial orders * * * unless the statute under consideration confers it expressly or by unavoidable implication." Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579, 598 (1970).
Although the majority declares that restoration and reimbursement hearings "would now clearly come within the initial hearing jurisdiction of the Office of Administrative Law" (n. 6), N.J.S.A. 52:14F-6(a) provides that administrative law judges shall be assigned "to an agency." Therefore, the jurisdiction of the administrative law judge could not exceed that of the agency to which he has been assigned. This conclusion is fortified by N.J.S.A. 52:14F-8(a) which precludes the assignment of an administrative law judge to hear contested cases with respect to the Division of Workers' Compensation except
I would remand the matter to the trial court for a determination as to plaintiff's right to job restoration and reimbursement for lost wages under the statute. I would affirm the determination by the Commissioner of Labor that he has no jurisdiction to determine the question of job restoration and reimbursement for lost wages and his refusal to impose a penal sanction.
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