New Jersey’s Conscientious Employee Protection Act (“CEPA”) makes employer retaliation against employees who report workplace violations both unlawful and compensable. While CEPA has encouraged employees to come forward when they believe that crimes, fraud, or other legal violations have been committed, a case now before the New Jersey Supreme Court could change all of that.

Just doing his job?

In the case at hand, Joel S. Lippman, M.D., Plaintiff vs. Ethicon, Inc., and Johnson & Johnson, Inc., Defendants, a former physician employed by a Johnson & Johnson subsidiary, Ethicon, accused the company of CEPA violations for terminating him after he complained about adverse effects of company products.  He did so in his role as World-Wide Vice-President of Medical Affairs and Chief Medical Officer. Ethicon responded by arguing that since raising product safety issues was part of this employee’s core job functions, their former employee was ineligible for whistleblower protection under CEPA.

Watching out for those who watch out for the public

The trial court held that since it was the employee’s job to raise safety concerns, his actions did not satisfy CEPA’s whistleblowing requirements. This is an exception created by some trial court judges and variously applied or ignored in those cases by different panels of the Appellate Division.

In this case, the Appellate Division reversed the trial court’s dismissal and directed a trial, proclaiming that CEPA does protect employees who serve as in-house whistleblowers. The case is now before the New Jersey Supreme Court, spawning “friend of the court” briefs from 27 labor, community, and environmental organizations.

Among those “friends of the court” is a group strongly supported by our law firm, the National Employment Lawyers Association (“NELA”), which is the country’s most influential pro-worker legal association. NELA and its allied groups have urged the Supreme Court to find that whistleblowing workers who are duty-bound to report public policy and legal violations actually need greater whistleblower protections, not less. They argue that the exception invented by the lower courts would, if sustained, swallow the rule, and that CEPA’s prophylactic role, as envisioned by our Legislature, would go into a death spiral.

Will killing off whistleblower protections injure the public interest?

According to NELA and other groups, siding with Ethicon will cause widespread problems by creating a disincentive for those who are in the best position to know if the public is at risk. If Ethicon’s position is upheld, employers could insulate themselves from CEPA claims simply by adding whistleblowing functions to virtually all job descriptions. This is decidedly not what the Legislature had in mind when it passed CEPA many years ago.

Protecting you from job loss.

If you face unwarranted employer discipline or unfair job loss as a result of whistleblower retaliation, we encourage you to reach out for immediate legal assistance from experienced legal counsel. Our office will research the facts, review the law with you, and help you figure out your next steps. This could involve negotiating better terms and conditions of your employment, seeking reasonable severance, or filing a civil claim for wrongful discharge. Our law firm stands ready to help you in your time of need.