New Jersey’s Whistleblower Law Protects All Employees, Including “Watchdogs”

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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