NJ Supreme Court Rules Watchdog Employees Entitled Whistleblower Protection

The Supreme Court of New Jersey recently held that a plaintiff who reports conduct as part of his or her job is entitled to the whistle-blowing protections afforded under the Conscientious Employee Protection Act (CEPA).

In light of the precedential decision in Lippman v. Ethicon, employers will have difficulty arguing that whistleblower employees were simply doing their jobs.

The Facts of the Case

As further detailed in a prior post, plaintiff Joel S. Lippman, M.D. alleged that his former employer, defendant Ethicon, Inc., a subsidiary of Johnson & Johnson, Inc., violated CEPA. He specifically alleged that he was terminated from his position as the vice president of medical affairs because he consistently advocated positions that favored the recall of products that, in his professional opinion, were dangerous to the public.

In defense of the whistleblower suit, Ethicon maintained that Lippman was terminated because he had an inappropriate relationship with someone who worked directly for him. It further argued that Lippman’s conduct did not constitute whistleblowing under CEPA because it was part of his job-related duties.

While the trial court dismissed the suit, the Appellate Division reversed. In ruling that so-called “watchdog” employees like Lippman should not fall outside of CEPA’s protections, the appeals court noted that such employees are the “most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.”

The Court’s Decision

The New Jersey Supreme Court affirmed, largely agreeing with the Appellate Division’s reasoning. As Justice Jaynee LaVecchia wrote for the unanimous court:

There is no support in [the Conscientious Employee Protection Act’s] language, construction or application in this court’s case law that supports that watchdog employees are stripped of whistleblower protection as a result of their position or because they are performing their regular job duties.

The New Jersey Supreme Court did find fault with one aspect of the Appellate Division’s decision, holding that the appeals court erroneously applied a heightened burden of proof for watchdog employees pursuing CEPA claims. According to the court, the requirement is “nowhere found in the statutory language.”