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Big Changes for New Jersey Whistleblower Law

New Jersey’s whistleblower statute, the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 protects employees against retaliation if they choose to disclose a policy or practice of the employer that the employee reasonably believes is in violation of a law. Numerous decisions by the New Jersey courts have interpreted CEPA broadly to protect employees who fall within the spirit of the act. CEPA is one of the most expansive whistleblower statutes in the country.

Recently the New Jersey Supreme Court granted cert in Lippman v. Ethicon, to review a decision by the Appellate Division that is contrary to the judicially created “job-duty exception” to CEPA. The trial court in Lippman found that that an employee who was terminated for advocating the recall of certain products that were harmful to the public could not bring a CEPA whistleblowing action for performing activities that fell within the sphere of his job-related duties (reviewing and reporting on product safety). The Appellate Division rejected this holding and stated that an employee’s job title and employment responsibilities should not be considered outcome determinative in deciding whether the employee has presented a cognizable cause of action under CEPA.

The trial court’s holding promotes the view that two employees could engage in exactly the same activity, yet only one would be protected under CEPA, solely because of the difference in their job duties. Consequently, if the reported illegal activity fell within the job duties of the reporting employee, then the employer could retaliate against such reporting and terminate the employee. Such a result would be contrary to public policy.

Public interest dictates that “watchdog” employees whose responsibilities include reporting illegal conduct to their employers should be protected under CEPA because such employees are most vulnerable to retaliation as they are uniquely positioned to speak out and ensure that their employer’s maintain compliance with the law and clear mandates of public policy.
The implications of this decision are far-reaching. A compilation of 27 environmental, labor and community organizations have filed amicus curie briefs with the New Jersey Supreme Court, including the Employers Association of New Jersey, N.J. Business and Industry Association, and New Jersey Association for Justice advocating that the Supreme Court use the new Lippman Test to permit CEPA claims by “watchdog” employees.

A final decision by the New Jersey Supreme Court will bring finality to the issue of whether an employer may or may not retaliate against an employee who engages in what would normally be protected activity under CEPA, merely because the protected activity falls within the employee’s ordinary job duties. A result affirming the trial court decision could threaten the broad remedial nature of CEPA.

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