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CEPA Is Not Preempted by the National Labor Relations Act

Posted by Frank Steinberg | Sep 08, 2016 | 0 Comments

Our system of federalism can present us with interesting choices and occaional dilemmas.  What to do when federal laws and state laws are in apparent conflict?  Given conflicting choices, which jurisdiction's rules will be followed?

As a broad principle, federal (U.S.) law will control over or “preempt” state law.  As you might imagine, however, the question whether preemption applies in a given situation can be subject to much debate.  Over time the courts have developed a large body of caselaw that addresses this question.

The NJ Supreme Court has just addressed such a conflict between federal labor laws and the Conscientious Employee Protection Act [CEPA], which is NJ's state whistleblower law.  We won't bother with the facts, which are a bit arcane.  Suffice it to say that the Supreme Court, in a 49 page opinion, reversed two lower courts that found preemption to exist.  The Supreme Court found that CEPA was not preempted.   In doing so, the Court emphasized the “general applicability” of CEPA, noting that such statutes are less likely to conflict with specialized federal statutes.

The Court went further.  While acknowledging some potential for conflict between CEPA and federal labor law, it found the potential conflict insufficient to trigger preemption. 

[W]e believe that when the State's interests in enforcing CEPA in a factual setting like this one – whistleblowing activity arising out of a prevailing wage dispute – are balanced against any potential interference with the federal labor scheme, the State's interests win out. New Jersey's interest in enforcing CEPA runs deep.  (Emphasis ours.)

Finding at worst a de minimis conflict between CEPA and federal labor law, the Court noted that CEPA claims are individual claims that seek to validate an employee's right to avoid retaliation once he raised a legitimate complaint.

Thus, while the preemption defense to future CEPA claims will have to continue to be evaluated on the facts and policies underlying the competing statutes, litigants in New Jersey will not lose their right to sue for retaliation for whistleblowing activity except where the preemptive intent of federal law is clear.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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