“Watchdog” Employees Are Allowed to Bring Whistleblower Claims in New Jersey

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Yesterday, the New Jersey Supreme Court expanded employees’ rights to bring whistleblower claims against their employers.  In Lippman v. Ethicon, Inc., the court held that the Conscientious Employee Protection Act’s (“CEPA”) protections extend to the performance of regular job duties by so-called “watchdog” employees.

Under CEPA, employers are not permitted to take retaliatory action against an employee because the employee engages in a “whistleblowing” activity, meaning the employee: 

(1) discloses or threatens to disclose to a supervisor or public body an employer’s activity, policy, or practice that the employee reasonably believes is illegal, fraudulent, or criminal;
(2) provides information to, or testifies before, a public body conducting an investigation, hearing, or inquiry into any violation by the employer of a law or a rule promulgated pursuant to law; or
(3) objects to or refuses to participate in any activity, policy, or practice that the employee reasonably believes is illegal, fraudulent, criminal, or incompatible with a clear mandate of public policy.

Prior to Lippman, a question existed as to whether CEPA’s protections applied to “watchdog” employees, who are employees whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care.

For example, in Lippman, the plaintiff served on internal review boards at Ethicon, Inc., and part of his job duties required him to assess the health risks posed by the company’s products and provide medical input regarding necessary corrective measures for their products.  After the plaintiff identified to his superiors several products as dangerous and in violation of federal law, he was terminated.  The New Jersey Supreme Court held that the plaintiff, as a “watchdog” employee, may assert that Ethicon, Inc.’s termination of him was in violation of CEPA.

Employers must be careful when making termination decisions that could be viewed as retaliatory.  For practical tips on effective terminations, contact Connell Foley’s labor and employment law attorneys.