Lally v. Copygraphics

PER CURIAM.

We affirm the Appellate Division’s determination, 173 N.J.Super. 162, that a plaintiff has a common law right of action for wrongful discharge based upon an alleged retaliatory firing attributable to the filing of a workers’ compensation claim and that, in addition to, or in lieu of, a judicial cause of action for civil redress, there are available both statutory penal sanctions in a disorderly persons proceeding in municipal court and administrative relief before the Commissioner of Labor and Industry, who has concurrent jurisdiction over such a dispute. Our af-firmance is predicated substantially upon the reasons expressed in Judge Pressler’s opinion for the Appellate Division.

In particular we endorse the conclusion of the Appellate Division that there exists a common law cause of action for civil redress for a retaliatory firing that is specifically declared unlawful under N.J.S.A. 34:15-39.1 and 39.2. The statutory declaration of the illegality of such a discharge underscores its wrongful and tortious character for which redress should be available. Such a cause of action is strongly founded in public policy which, in this case, is reflected in the statutory prohibitions themselves. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 66-73 (1980). Moreover, the penal and administrative remedies that are provided by N.J.S.A. 34:15-39.1 and 39.2 to rectify this form of illegal employment practice will clearly be augmented by recognition of an alternative or supplemental judicial right to secure civil redress.. A common law action for wrongful discharge in this context will effectuate statutory objectives and complement the legislative and administrative policies which undergird the workers’ compensation laws. The determination of the Appellate Division that the statutory treatment of this kind of retaliatory firing is not preemptive of a civil right of redress is sound. 173 N.J.Super. at 170-172, 179.

Additionally, although we concur in the observation of the appellate court that retaliatory discrimination “by an employer constitutes both a public and a private wrong, each of which is entitled to vindication,” id. at 180, there are expressions in the opinion which might be understood to downgrade or minimize the suitability of administrative relief and to encourage resort to judicial remedies in preference to administrative solutions. Consequently, while we affirm the judgment below, we modify and qualify the rationale offered by the Appellate Division.

The court below apparently felt impelled to find that the administrative relief provided by N.J.S.A. 34:15-39.1 and 39.2 is strictly limited. It did so, seemingly, to strengthen its conclusion that there exists a viable common law cause of action for civil redress which has not been superseded by the legislative treatment. Such a civil cause of action, however, is firmly anchored as a matter of public policy upon the unlawful, wrongful, and tortious character of the proscribed conduct. Cf. Pierce v. Ortho Pharmaceutical Corp., supra, 84 N.J. at 66-73. If the Legislature had wanted to foreclose a judicial cause of action, it would have done so expressly. Cf. Kaczmarek v. N.J. Turnpike Authority, 77 N.J. 329 (1978) (under N.J.S.A. 34:13A-5.5(c) PERC has “exclusive power” to deal with unfair labor practices). Thus, reliance by the Appellate Division upon the alleged “inadequacy” of the administrative remedy, as proof of legislative intent not to abridge or preempt a common law remedy, was unnecessary.

We need not pass upon the soundness of the limited view of the administrative remedies expressed below. For the reasons stated below, 173 N.J.Super. at 177-178, we conclude that the forms of relief specifically enumerated in the statute, namely, restoration to employment and compensation for lost wages, are clearly available to the Commissioner. This enumeration, however, is not necessarily one of strict limitation as suggested by the Appellate Division. 173 N.J.Super. at 180. The pertinent part of the statute reads,

As an alternative to any other sanctions herein or otherwise provided by law, the Commissioner of Labor and Industry may impose a penalty not exceeding $1,000.00 for any violation of this act. (emphasis added) [N.J.S.A. 34:15-39.2]

It is possible that this language is potentially more expansive than or, conversely, not as intrinsically limited as, suggested by the Appellate Division. This remains an open question and, for present purposes, we need not determine the outer reaches of the Commissioner's power under this statute.¹

Judge Pressler also expressed the belief that the judicial course of action might be preferable because “circuity” could be avoided by securing “[vindication of both the public and private interest in [a] single proceeding.” 173 N.J.Super. at 181. This can be taken to suggest that pursuit of administrative relief is generally disfavored and that preference should be extended to the judicial course. We reject this implication. The jurisdiction to redress an unlawful, retaliatory discharge is concurrent. • The election is that of the plaintiff. She may choose, at her complete discretion, an administrative route, which though arguably not as complete as a civil action in a court of law, may be less involved, time consuming, and expensive. Moreover, as pointed out by the Appellate Division, id. at 177, the Legislature itself recognized the expertise, experience and sensitivity of the Commissioner in these matters. An aggrieved discharged employee might well believe these considerations to be important in assessing which remedial path to follow.

With these observations and for all of the reasons expressed, we affirm the judgment below.

1 We note the recent introduction of Assembly Bill 403. This proposed legislation explicitly delineates the nature and scope of the administrative proceeding that may be brought before the Commissioner of Labor and Industry for a retaliatory firing. Of course, we do not here envisage any particular construction and application to be accorded such proposed legislation.