New Jersey Employment Lawyer Blog

Articles Posted in Retaliation / Whistleblowing

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New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

Police Officer whistleblowerIn March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

After this meeting, T.D. asked his union’s lawyer to send a letter to the prosecutor’s office about the sergeant’s warnings. T.D. subsequently submitted a formal statement to the prosecutor.

T.D. alleges he experienced retaliation because of his objections. For instance, he was removed him from the K–9 unit in January 2010 and denied a promotion in December 2010. The Department failed to promote him again approximately 5 months after he filed his lawsuit. It subsequently assigned him to patrol the local mall, which is considered a “punishment post.”

The trial court granted Tinton Falls’ motion for summary judgment. It concluded T.D. did not engage in any whistleblowing conduct protected by New Jersey’s Conscientious Employee Protection Act (“CEPA”). It found CEPA  protects only employees who object about the employer’s illegal activities, and T.D. merely objected about a sergeant diverting water at his home.

In an unpublished opinion, T.D. v. Borough of Tinton Falls, the Appellate Division reversed. It noted that, at least under certain circumstances, CEPA prohibits employers from retaliating against employees because they object about a coworker’s illegal activity. The court concluded that T.D.’s objection about his sergeant’s statement that he should have tipped him off about the prosecutor’s investigation is protected by CEPA.

The Court found it significant that instead of investigating the sergeant’s criminal conduct, the Department improperly used an IA investigation to learn who made the report to the prosecutor; brought disciplinary charges against that officer; and referred to officers who spoke to the prosecutor about the sergeant’s conduct as “rats.” It concluded that this evidence reinforces the inference that the Department did not tolerate employees who failed “to keep quiet about illicit conduct engaged in by fellow officers,” or who failed to warn fellow officers about legal proceedings against them.

The Court also ruled that T.D.’s objection about the fact that Tinton Falls was aware of the sergeant’s crime, but failed to investigate it because he is a member of the Police Department, is protected by CEPA. Specifically, it found that objection falls within CEPA’s protection for employees who provide information to a public body that is investigating a violation of law by their employers. In doing so, the Court recognized that T.D.’s objection implicates the “blue wall” of silence, referring to the fact that police officers often are reluctant to incriminate their fellow officers. As the Court explained, “[p]olice officers take an oath to uphold the law and their position ‘require[s] a high level of honesty, integrity, sensitivity, and fairness in dealing with members of the public, knowledge of the law, and a pattern and exhibition of law-abiding conduct.’” Accordingly, the Court remanded the case to the trial court.

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Yesterday, the New Jersey Supreme Court ruled that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), protects employees who blow the whistle about issues that relate to their job duties.

CEPA is a broad whistleblower law. It prohibits employers from retaliating against employees who, among other things, object to or refuse to participate in activities they reasonable believe are illegal, fraudulent, or violate a clear mandate of public policy relating to public health, safety, welfare or the environment. It also protects licensed medical professionals who object to or refuse to participate in activities they reasonably believe constitute improper quality of patient care.

On several occasions, New Jersey’s Appellate Division has ruled that employees are not protected by CEPA if their objections relate to their job duties. This threatened to dramatically limit the scope of CEPA’s protection since employees typically are in the best position to blow the whistle on activities related to their job functions.

A Happy WatchdogMore recently, in Lippman v. Ethicon, Inc., another panel of the Appellate Division recognized that employees can be protected by CEPA even if their objections related to their job duties. However, it added an extra requirement for those so-called “watchdog” employees. Specifically, it required them to prove they either made every effort to secure compliance with the law, or that they refused to participate in the conduct they found objectionable. I discussed the Appellate Division’s opinion in Lippman in my article: New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law.

Both the employer and employee in Lippman asked the New Jersey Supreme Court to reverse its ruling. Mr. Lippman asked the Supreme Court to remove the additional requirements the Appellate Division had placed on watchdog employees, and Ethicon asked it to rule that CEPA does not protect employees who object in the course of performing their job duties.

In its opinion in Lippman v. Ethicon, Inc., the New Jersey Supreme Court explained that CEPA expressly protects “any employee” who engages in a protected activity. Further, the statute defines “employee” very broadly to even include individuals who might otherwise be considered independent contractors. As a result, the Court ruled that CEPA protects all employees, whether or not they can be considered “watchdogs.”

The Court noted that there is nothing in the language of CEPA to even hint that an employee’s job duties are relevant to whether he is protected by it. To the contrary, the statute protects employees who “refuse to participate” in an activities they believe are unlawful, implying it protects activities related to an employee’s normal job duties, since “it would be likely that the employee would be asked to participate in employer activity within the course of, or closely related to, his or her core job functions.”

The Court further found no basis for the extra requirement the Appellate Division had imposed on watchdog employees. Rather, it concluded that the same standard applies irrespective of whether the employee objects to an activity that is related or unrelated to her job duties.

Lippman is an extremely important ruling for employees. It removes an argument employers repeatedly have made in an attempt to dismiss otherwise valid retaliation claims. The Supreme Court’s ruling should now eliminate that argument once and for all, making it clear that all New Jersey employees are protected by CEPA.

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A recent unpublished decision from the New Jersey Appellate Division demonstrates that employees can prove their employers retaliated against them for objecting to discrimination without proving the discrimination actually was unlawful.

Debra Lemeshow worked for PSEG Services Corporation. In 2000, the company made her its Manager, Business Management Support, with a salary of $95,000 and a potential 15 percent annual bonus.

In 2001, PSEG hired a company to compare its compensation packages to similar jobs at other companies. It determined the appropriate salary for Ms. Lemeshow’s position was between $65,000 and $70,000 per year.

When Ms. Lemeshow learned about this, she complained that the company had improperly compared her job with entry-level positions that were not comparable to hers. PSEG eventually agreed to set her salary at $100,800, but reduced her yearly bonus potential to 10 percent.

Ms. Lemeshow told her supervisor she still was dissatisfied with her new compensation. She claims her supervisor responded by saying, she made a lot of money for a single woman,” and the company needs to “take care of the men with families.” In response, Ms. Lemeshow told her supervisor she was treating her differently than her male counterparts, indicated she does not make too much money for a woman, and again asked her to increase her compensation.

Older woman fired brings lawsuit under New Jersey Law Against DiscriminationIn 2005 and 2006, Ms. Lemeshow received the highest possible performance rating, “exceptional.” Nonetheless, in 2006 she only received a 4 percent raise. Accordingly, she again complained she was being treated unfairly compared to her male peers.

In 2007, PSEG substantially increased Ms. Lemeshow’s job duties. She complained because the company did not follow its policy that whenever an employee’s responsibilities are increased by 20 percent it has to evaluate whether to rewrite the job description. She also claimed “the only increased jobs are for promoting younger women and hiring men!” and noted that “none of us ‘older women’ are permitted to re-write job descriptions to reflect the new organizational responsibilities.” After this, Ms. Lemeshow’s supervisor gave her a performance rating for 2007 that was two levels below the “exceptional” ratings she received during the two previous years.

Later that year, PSEG claimed Ms. Lemeshow did not have prior approval to spend a total of $3,500 over the previous three years to attend a gala. Ms. Lemeshow claims she had approval to use money from her Department’s budget for the gala tickets, and the company did not discipline a man in her department who did the same thing for years. PSEG subsequently claimed Ms. Lemeshow had been improperly reimbursed for her personal cell phone and home Internet service for four years, at a total cost of $1,859. PSEG then fired her.

Ms. Lemeshow filed a lawsuit alleging PSEG fired her in retaliation for her complaints about gender and age discrimination, in violation of the New Jersey Law Against Discrimination (“LAD”). The trial court dismissed her case, finding insufficient evidence for a jury to find retaliation.

In Lemeshow v. PSEG Services Corp., the Appellate Division reversed. It noted that although Ms. Lemeshow might not have enough evidence to prove PSEG actually discriminated against her based on her gender or age, that is not required to prove retaliation. Rather, Ms. Lemeshow’s complaints that she was underpaid compared to the men in her department, and only men and younger women receive additional responsibility, are enough to show she had a good faith belief she was the victim of unlawful discrimination. As a result, the Court concluded she was protected from retaliation.

The Appellate Division further recognized there is evidence that the company did not discipline other employees who engaged in similar use (or misuse) of company funds. It concluded a jury should determine whether PSEG really fired Ms. Lemeshow because of this, or because she complained about gender and age discrimination. Accordingly, it remanded her case to the lower court for a trial.

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On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

Mr. Hitesman won his retaliation case at a trial, but the jury did not award him any damages. He appealed, asking for a new trial on damages. Bridgeway also appealed, arguing Mr. Hitesman’s objections were not protected by CEPA. The Appellate Division agreed with the company, finding Mr. Hitesman did not have an objectively reasonable belief that its actions either constituted improper quality of patient care or were incompatible with a clear mandate of public policy.

Body Temperature Check UpIn Hitesman v. Bridgeway, Inc., the New Jersey Supreme Court affirmed the dismissal of Mr. Hitesman’s case. To win a CEPA case, an employee has to identify a law, rule, regulation, clear mandate of public policy, or professional code of ethics that has a close enough connection (“substantial nexus”) to the objection or complaint the employee alleges caused the company to retaliate. In Hitesman the Supreme Court ruled the employee’s objection must indicate that the employer violated a standard against which the employer can measure its conduct. For instance, it is not enough to complain that the employer should have done something safer, healthier, or better for the environment. Rather, an employee must object believe the employer was required to do something it failed to do, or was prohibited from doing something it did do.

Mr. Hitesman argued his objections were protected by CEPA because he reasonably believed the nursing home violated the American Nursing Association (ANA) Code of Ethics. The Court agreed a medical ethical code like the ANA Code can be the source for a standard of patient care under CEPA. However, it found the ANA Code did not protect Mr. Hitesman because it does not include any specific requirements for hospitals to control the spread of infection. Rather, it sets general goals and requirements for nurses, such as being committed “to the health, well-being, and safety” of patients, and taking “appropriate action regarding any instances of incompetent, unethical, illegal, or impaired practice by any member of the health care team or the health care system.”

Mr. Hitesman also argued based on the fact that Bridgeway’s Employee Handbook required him to comply with the ANA Code. However, the Court ruled that the handbook did not include any specific standards or requirements regarding nursing homes controlling the spread of infectious disease. Accordingly, it found the handbook could not provide a basis to bring Mr. Hitesman’s objections within the scope of CEPA’s protection.

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There are many ways to prove a retaliation claim.  Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her.  In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.”  But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Retaliation in the workplace and the Fair Labor Standards ActZalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA).  In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

In early September 2011, Ms. Zalinskie called the New Jersey Department of Labor (NJDOL) twice because the firm was giving her compensatory time off when she worked overtime instead of paying her time-and-a-half. She also submitted a written complaint to the NJDOL on September 4, 2011.

On September 19, Ms. Zalinskie called the NJDOL again because the law firm had docked her pay when she arrived to work 6 minutes late.  The following day she met with her supervisor and the firm’s office manager.  During the meeting, she complained about the firm docking her pay even though she was a salaried employee.  When asked why she believed this was unlawful, Ms. Zalinskie indicated she leaned it from the NJDOL.  The next day, the firm’s office manager asked Ms. Zalinskie to provide proof the firm had violated the law.

On September 23, 2011, an investigator from the NJDOL made an unannounced visit to the firm, claiming he was conducting a random audit.  Six days later, on September 29, 2011, the firm fired Ms. Zalinskie.  The firm says it decided to fire Ms. Zalinskie on September 21, 2012, the day on which it asked her to prove it was unlawful to dock her pay, but decided to wait to implement its decision.  Of course, the firm also claims it fired Ms. Zalinskie for poor performance rather than because of her complaints about violations of the FLSA.  In fact, it denies learning Ms. Zalinskie filed a complaint with the NJDOL until after it fired her.

Based on these facts, the court concluded there is enough evidence for a jury to find the firm fired Ms. Zalinskie because of her complaints to the NJDOL.  It found her termination was “almost contemporaneous” with her complaints to the NJDOL and the NJDOL’s audit of the firm because she was terminated “less than a month after she filed a written complaint with the NJDOL, eight days after she told [her boss] at the September 21, 2011 meeting that the source of her wage allegations was the NJDOL, and six days after” the NJDOL investigator audited the firm.  In contrast, although the firm could have fired her for poor performance for nearly a year, it did not decide to do so until shortly after she complained to the DOL.  Accordingly, the judge denied the firm’s motion for summary judgment, thereby giving Ms. Zalinskie a chance to try to prove her case to a jury.

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Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

Corporate Tax FraudThe Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.

Mr. Zang and Ms. Lawson claim they experienced retaliation after they reported fraud committed by the mutual funds.  Specifically, Mr. Zang claims he was fired and Ms. Lawson claims she experienced a series of adverse employment actions that eventually caused her to resign (a constructive discharge).

In determining whether Mr. Zang and Ms. Lawson are protected by the Sarbanes-Oxley Act, the Supreme Court focused on the relevant language of the anti-retaliation provision, which prohibits any publicly traded company or any “officer, employee, contractor, subcontractor, or agent of such company” from retaliating against an employee who provides information or otherwise assists in certain investigations into possible violations of the Act.  The Court concluded that the plain meaning of this provision prohibits contractors and subcontractors from retaliating against their own employees, rather than merely prohibiting them from retaliating against employees of publicly traded companies.  It supported this interpretation on the basis that normally contractors and subcontractors can only terminate, demote or suspend employees of their own company, rather than employees of the publicly traded companies which they manage.

The Supreme Court further supported its ruling based on the fact that the collapse of Enron involved fraud by its private accounting firm, Arthur Andersen.  The Act was passed in part because employees of Arthur Andersen who reported the fraud experienced retaliation, including demotions and terminations as a result.  The court reasoned that if the whistleblower provisions only protected employees of publicly trades companies, then it would not protect employee of companies like Arthur Anderson who blow the whistle on fraud committed by a public traded company for which they work.  This would thwart the Act’s express purpose of “protect[ing] investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.”

Accordingly, the Court held that the Sarbanes-Oxley Act’s whistleblower protection applies to individuals who work for publicly traded companies through privately held companies such as law firms, accounting firms and investment companies.  It therefore ruled that Mr. Zang and Ms. Lawson can proceed with their cases.

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Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

There was no dispute that Mr. Goldsmid was entitled to overtime pay when he worked more than 40 hours per week. However, there were at least 12 weeks in which Mr. Goldsmid worked overtime but was not compensated for it.

Although Mr. Goldsmid initially did not realize he was entitled to receive overtime pay, in February 2011 the company’s accountant provided him a factsheet from the United States Department of Labor that explains the Fair Labor Standards Act (FLSA)’s overtime requirements. Mr. Goldsmid provided copies of that document to some of his coworkers and his boss. In March 2011 he told one of the owners of the company he believed the company had decreased his pay when it started paying him a salary. Approximately three months later, Lee Rain fired Mr. Goldsmid, claiming he was disruptive and his job performance was poor. Mr. Goldsmid then filed a lawsuit claiming his employer failed to pay him overtime in violation of the FLSA, and retaliated against him in violation of the FLSA and New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA).

Lee Rain eventually filed a motion for summary judgment, asking the court to dismiss Mr. Goldsmid’s case. Among other things, the company argued there was not enough evidence to prove it fired Mr. Goldsmid because he objected about a violation of the FLSA, rather than because of his job performance.

Previous cases have recognized that when an employee attempts to rely solely on evidence of the timing between his legally protected objection and the company’s decision to fire him, he has to show the timing is so close that it is “unusually suggestive” of retaliation. Otherwise, timing alone is not enough to prove a retaliation claim.

The judge explained that the three months between Mr. Goldsmid’s complaint to his boss and the company’s decision to fire him was not “unusually suggestive” and therefore was insufficient to prove his case. However, she also noted that the company hired two new employees to work in its warehouse, and started their jobs on the day after Lee Rain fired Mr. Goldsmid. Although the company claimed it decided to hire those employees a month before it fired Mr. Goldsmid because it was getting ready for the busy summer season, the court ruled that a jury could find it really hired them to replace Mr. Goldsmid and delayed firing him until his replacements were ready to start their jobs. Based on that, the judge concluded a jury could find Lee Rain retaliated against Ms. Goldsmid in violation of the FLSA and CEPA. Accordingly, it denied the company’s motion for summary judgment.

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New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job. There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA. The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service. Shortly thereafter, Mr. Dukin’s boss ordered him to repair the bus using a bumper-jack. Mr. Dunkin refused because he believed doing so was unsafe because the bus was on uneven ground. His boss then ordered him to go home. At home, Mr. Dukin filed a complaint with New Jersey’s Office of Public Employees Occupational Safety and Health department (PEOSH), which eventually found multiple safety violations. When the Superintendent learned what had happened he fired Mr. Dukin, only to rescind his termination five minutes later. Mount Olive subsequently scheduled a hearing to discuss Mr. Dukin’s employment. Prior to the meeting, Mount Olive offered Mr. Dukin the option of being paid for the final five months of his employment contract if he resigned and waived his legal claims against the school district. Mr. Dukin rejected this offer. Mount Olive permitted Mr. Dukin to finish out the school year, but did not renew his contract for the following year. Mr. Dukin then filed a retaliation lawsuit under CEPA. The Appellate Division found Mr. Dukin is protected by CEPA. It distinguished its previous rulings regarding employees who object in the course of performing their job duties, explaining that unlike Mr. Dukin each of those cases involves an employee whose “central job description was to assess and analyze risk for” their employer. In other words, it establishes a different standard for (1) employees whose jobs focus on safety or compliance, who either have limited or no protection under CEPA; and (2) all other employees, who are protected by CEPA whether or not their objections relate to their job duties. The Appellate Division also found Mr. Dukin has enough evidence to prove retaliation. This includes the fact that his supervisor previously told the mechanics he would “bury” them if they ever went over his head, the timing and circumstances of Mount Olive’s disciplinary actions toward him, and the fact that the school district changed its justification for firing him from budgetary concerns to poor performance. Accordingly, the court concluded that a jury should determine whether Mount Olive retaliated against Mr. Dukin in violation of CEPA. The Dukin opinion is unpublished, so it is not a binding precedent. However, it is a reminder that this question is in a state of flux that will remain until the New Jersey Supreme Court finally answers this question.

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Last month, in Gomez v. Town of West New York, the United States District Judge William Martini denied a motion to dismiss a civil rights lawsuit against the Town of West New York, New Jersey.

Alain Gomez worked for West New York as its Urban Enterprise Zone Coordinator. According to Mr. Gomez’s allegations, when Mayor Felix Roque ordered him to seek contributions to a private charitable not-for-profit organization the Mayor was running, Mr. Gomez refused because it was illegal to work for a private organization during his working hours for the Town. The Mayor then retaliated against Mr. Gomez by moving him into a small office without proper ventilation.

New Jersey Appellate Court Permits Whistleblower Lawsuit to Proceed.jpgIn response, Mr. Gomez filed a complaint under the New Jersey Public Employees Occupational Safety and Health Act (“PEOSHA”). The state eventually ordered West New York to provide Mr. Gomez safe working conditions. Around the same time Mr. Gomez also contributed information to a website called, and publicly accused Mayor Roque of misusing public resources.

Mr. Gomez eventually told West New York’s Town Administrator that the Mayor had illegally instructed him to spend working hours performing fundraising for the Mayor’s charity. The Town Administrator then scheduled a meeting between Mr. Gomez and the Town Commissioner to discuss this issue. Soon thereafter, the Mayor told Mr. Gomez he was unhappy about his meeting with the Commissioner and threatened to fire him. True to the Mayor’s threat, West New York fired Mr. Gomez two days later.

Mr. Gomez claims the Mayor and Commissioner continued to harass him after they fired him, including by threatening him, intimidating him, calling him names, making disparaging comments about him to the media, offering to rehire him as the Deputy Director of the Parks Department only to demote him to the position of garbage collector the next day, and threatening to fire his father who also works for the Town.

Mr. Gomez sued West New York, Mayor Roque and three other individuals under the First Amendment, the New Jersey Civil Rights Act (NJCRA) and the Conscientious Employee Protection Act (CEPA). West New York asked the Court to dismiss Mr. Gomez’s First Amendment and NJCRA, arguing his claims did not relate to a matter of public concern. To be protected by the First Amendment speech has to relate to a matter of public concern. The Court found this requirement was met since Mr. Gomez was attempting to “bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.”

The Town also argued Mr. Gomez’s speech was not constitutionally protected because he supposedly was speaking as part of his official duties. The United State Supreme Court has ruled the First Amendment does not protect speech if it is made as part of a public employee’s job duties. However, the Appellate Division found this did not bar Mr. Gomez’s claims because his point was he should not be spending time fundraising for the Mayor’s private charity during his working hours, and thus he was speaking in his capacity as a private citizen rather than as part of his official duties.

Finally, the Court found Mr. Gomez’s lawsuit sets forth a valid claim under CEPA. It explain that to prove a CEPA claim, an employee must show he (1) reasonably believed his employer “was violating a law, rule, or regulation or a clear mandate of public policy concerning the public health or safety;” (2) performed a whistle-blowing activity listed in CEPA; (3) experienced an adverse employment action; and (4) the employee’s whistle-blowing activity caused the adverse employment action. It found Mr. Gomez’s allegations could support each of these requirements. Accordingly, it ruled that Mr. Gomez can proceed with his case.

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New Jersey’s Conscientious Employee Protection Act (CEPA) has long been described as one of the broadest whistleblower laws in the nation. Among other things, it prohibits employers from retaliating against employees because they object to, disclose, or refuse to participate in an activity they reasonably believe is illegal, criminal or fraudulent.

Despite CEPA’s broad reach, several past cases have ruled that employees are not protected by CEPA if their objections were part of their job duties. For example, a safety officer who complains about an unsafe work condition or a human resources manager who reports sexual harassment would not be protected by CEPA under those cases.

But earlier this month, in Lippman v. Ethicon, Inc., New Jersey’s Appellate Division ruled that line of cases is inconsistent with the way the New Jersey Supreme Court has directed courts to interpret CEPA. It ruled that “an employee’s job title or employment responsibilities” should not be the deciding factor in a CEPA case.

The Lippman case involved an employee, Joel Lippman, who worked for Ethicon, Inc., which is a subsidiary of Johnson & Johnson, Inc. Mr. Lippman was Ethicon’s Vice President of Medical Affairs and Chief Medical Officer. During his employment, Mr. Lippman repeatedly advocated for Ethicon to recall numerous products he believed were unsafe. He claims the company eventually fired him in retaliation for doing so, and brought a retaliation lawsuit under CEPA. The trial court dismissed Mr. Lippman’s case. It found he is not protected by CEPA because he was merely doing his job when he supported recalling the products he believed were unsafe, and therefore is not protected by CEPA.

The Appellate Division disagreed. It recognized that employees like Mr. Lippman are in the best position to know whether a company is complying with relevant legal standards. In fact, it labeled employees who are responsible for these types of issues “watchdogs.” It concluded:

New Jersey's Whistleblower Law Protects Watchdog Employees.jpg

[I]t would be a sad irony indeed if such a “watchdog” employee, like [Mr. Lippman], would be deemed by a court to fall outside the wall of protection created by the Legislature to whistleblowers. If an individual’s job is to protect the public from exposure to dangerous defective medical products, CEPA does not permit the employer to retaliate against such an individual because of his or her performance of duties in good faith, and consistent with the job description.

However, the court added a new requirement for “watchdog” employees under CEPA. Specifically, they must either prove they (a) “pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” In contrast, other employees who object to apparent violations of the law do not need to prove they pursued all internal means of securing compliance to be protected by CEPA.

The Lippman opinion is published, making it a binding legal precedent. It fixes a major loophole other courts have created in CEPA’s protection by protecting watchdog employees. However, since the decision conflicts with previous rulings by the Appellate Division the case is likely to wind up in the New Jersey Supreme Court, which hopefully will resolve this issue once and for all.

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