Written by Richard J. Cino and Michael D. Ridenour
In a decision that is likely to have far-reaching impact on employers, the New Jersey Supreme Court has rejected a heightened standard for “watchdog” employees, i.e. employees whose job duties include ensuring legal compliance, to prove whistleblower liability under the New Jersey Conscientious Employee Protection Act (CEPA). Lippman v. Ethicon, Inc., No. A-65/66-13 (July 15, 2015).
The plaintiff, a former high-ranking executive with the responsibility of evaluating and ensuring the safety of the employer’s pharmaceutical products, claimed his employment was terminated because he objected to the sale of products he believed were unsafe, even though the employer ultimately went along with the plaintiff’s recommendations. After the lower court dismissed the CEPA claim on summary judgment, the claim was resuscitated by the New Jersey Supreme Court citing that CEPA applies with equal force to watchdog employees as it does to other employees.
In reaching this decision, the Court expressly rejected an Appellate Division holding in Massarano v. N.J. Transit, 400 N.J. Super. 474 (App. Div. 2008), which held that an employee who simply raises illegal or unethical conduct as part of his or her job duties cannot claim whistleblower protection under CEPA. The Court also rejected the Appellate Division’s holding in Lippman requiring a watchdog employee to prove that he or she refused to participate in objectionable conduct or “pursued and exhausted all internal means of securing compliance” with the law in order to succeed on a CEPA claim. The Court found that this heightened standard had no basis in CEPA, which does not distinguish between watchdog and other employees. In so holding, it recognized that CEPA’s protective and deterrent goals are not served by excluding watchdog employees from its protections.