“Watchdog” Whistleblower Protections Expand Employee Rights

In July of 2015, the New Jersey Supreme Court ruled unanimously on key provisions of the NJ Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et seq., New Jersey’s so-called “whistleblower” statute, which protects whistleblowing employees from the adverse economic effects of employer retaliation. The CEPA statute has been considered one of American’s strongest bulwarks against employer misconduct and retaliation against employees whose only “crimes” were their reporting of criminal, financial, environmental, and/or unethical wrongs. The High Court’s definitive interpretation puts an end to certain lower court rulings that exempted from CEPA’s coverage those employees whose jobs already required them to report malefaction in the workplace. Joel S. Lippman, M.D., vs. Ethicon, Inc., and Johnson & Johnson, Inc., 222 N.J. 362 (2015).

The Facts and the Case

Plaintiff Joel S. Lippman, M.D., worked for Ethicon, Inc., a subsidiary of Johnson & Johnson, Inc., from July 2000 until May 2006 when he was fired. Lippman served as Ethicon’s worldwide vice president of medical affairs and chief medical officer. His job description duties included medical reviews and product safety.

Lippman served on Ethicon internal review boards, including a board that assessed health risks created by Ethicon products. The board provided medical input concerning recommended corrective measures as to company products already in the field. Lippman regularly objected to proposed or ongoing sales of Ethicon medical products, pronouncing they were unsafe medically and their sale contravened specific federal and state laws and regulations.

While Lippman was subjected to criticism by other Ethicon employees from time to time, including other board members, in fact Ethicon eventually followed many of Lippman’s recommendations.

Ethicon terminated Lippman’s employment in May of 2006. After Lippman filed suit against Ethicon and J & J, the trial judge sustained the defendants’ motion to throw out his suit, on the grounds that Lippman’s “whistleblowing” was merely part and parcel of his job description role in the company, and therefore he was exempt from “whistleblower” protection. This is the so-called “watchdog” whistleblower exception. On appeal, the Appellate Division reversed the decision of the trial court, stating that there was no such exception recognized in the plain text of the CEPA statute, and that the case would have to go back to trial. On appeal to the State Supreme Court, the company asked the Court to uphold the trial court’s ruling, which itself was based on previous rulings of other New Jersey judges who held “watchdog” whistleblowers to be outside the intended protections of the CEPA statute.

Supreme Court Analysis

Upon review, our Supreme Court held that CEPA’s protections extend to the performance of “watchdog” employees’ regular job duties, no matter what they are. “Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection,” said the unanimous High Court.

CEPA itself never envisioned the trial court’s exemption: namely that those workers whose job descriptions included investigation and reporting of misconduct automatically should be excluded from “whistleblower” status. The Supreme Court considered that interpretation completely at odds with CEPA’s clear legislative mandate, and said the lower courts’ invented exemption would swallow the public policy rule, which is to protect workers from vengeful employers who might seek to cover up corporate misdeeds. The Supreme Court’s concern was that, if the exemption were permitted, more and more employers would categorize more and more employees, by job description, as “watchdogs”, thereby gutting the Legislature’s intent. By emphasizing that ALL employees, including “watchdog” whistleblowers, are fully covered by CEPA, the Supreme Court reinforced the importance of employee and public protection from the depredations and punitive measures of bad faith employers.

Consequences of the Decision

All workers, as well as the New Jersey public, will benefit from the Supreme Court’s thoughtful and unanimous decision.

Furthermore, employers of 10 or more employees are legally required to display CEPA notices in the workplace, and distribute them annually, by paper copy or email, both in English and in the majority language used in the workplace if other than English. New Jersey’s employers are obligated to make their employees aware of the law, as well as their protections, rights, and obligations under the Act.

Conclusion

Our office regularly represents “whistleblowing” employees or former employees. If you or someone you know has a crisis or concern about workplace discrimination or retaliation, you or they need to speak with employment lawyers experienced in representing workers. We will consider the facts, investigate the relevant law, and give an opinion about the likelihood of success, whether in negotiations with the employer, mediation, arbitration, or litigation. Call or write us today. We look forward to hearing from you.