Employees’ increasing sensitivity to data privacy and security, and widely accepted public policy to protect personal data maintained by businesses, require employers to respond meaningfully to employee data privacy and security complaints or risk whistle blower claims of retaliation.

The U.S. District Court for the District of New Jersey recently held that an employee who voiced concerns regarding his employer’s handling of data security before he was fired may proceed to trial under the New Jersey Conscientious Employee Protection Act (“CEPA”) on the ground that he was engaged in protected whistle blowing activity under CEPA. This is one of the first decisions linking a NJ CEPA or similar claim and data security concerns, and is in line with increased efforts by both the federal and state governments to protect employee data.

Many, if not most, occupations require the movement of information over electronic networks and systems, very often sensitive identifiable information about customers and/or employees. In our electronic environment, employees are increasingly aware of regulations designed to protect personal information, as well as the events that drive legislatures and agencies to action – massive data breaches and troubling reports of the misery caused by identity theft. As a result, employees are likely to expect and even demand employer-established safeguards to protect this information. These include written policies, training, logon and user authentication controls, among others.

Employers should take employee concerns regarding data privacy and security seriously, not only to help assure compliance, but also because subsequent adverse action against that employee could provide the basis for a whistleblowing/retaliation claim. For instance, an employee might express concern to his supervisor that the company provides no privacy training for employees with access to personal information, or that company laptops are not password-protected or encrypted. An employee might even refuse to utilize certain information systems because of a belief, correct or incorrect, that the systems are not adequately safeguarded. An employee that subsequently experiences adverse employment action, such as the termination of employment, could claim the adverse action was in retaliation for complaints concerning the company’s alleged data security deficiencies.

To establish a prima facie CEPA claim under New Jersey law, the plaintiff must offer evidence that he engaged in whistleblowing and was subjected to an adverse employment action causally connected to the protected activity. Additionally, the plaintiff is required to allege he reasonably believed the defendant’s conduct violated a law, rule or regulation, or a clear mandate of New Jersey public policy.

It is conceivable that a New Jersey court could find facts sufficient to support a CEPA claim in the circumstances described above based on an employee’s reasonable expectation that personal identifying information will be kept confidential. In fact, New Jersey’s Identify Theft Protection Act (“ITPA”), 56 N.J.S.A. 56:11-45, calls for the protection of certain personal information including Social Security numbers “in order to detect and prevent identity theft” thus creating a nexus between the employee’s allegations and the ITPA. Of course, a jury would then have to find the employee’s termination was based on impermissible retaliation.

So, in addition to concerns about data breaches and other information risks relating to personal information, employers need to be mindful of employee complaints about data security and address them appropriately. A comprehensive written information security program can go a long way to prevent these kinds of claims.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.