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Friday, March 18, 2016

New Jersey Whistleblower Retaliation and Termination Is Prohibited Even Against Watchdogs

New Jersey has one of the strongest state statutes prohibiting retaliation against employee whistleblowers. It is now well-settled law that even employees who are working as monitors for the employer, sometime known as employee “watchdogs”, whose paid job responsibilities are specifically to monitor, test, evaluate the duties, functions and products of employer, or to report wrongdoings or potential health or safety violations directly to the employer itself to prevent the employer from running afoul of the law, may bring a claim under New Jersey’s Whistleblower statute, the New Jersey Conscientious Employee Protection Act, N.J.S.A.§ 34:19-1, et seq., commonly known as “CEPA”. 

Watchdog employees clearly have the same protection from retaliation for reporting such things to the employer, in the same manner as other non-watchdog employees are protected from retaliation. Watchdog employees who object or complain about their employer’s current or proposed business activity as part of  the regular course of fulfilling their job duties, may now find it easier to prevail in a claim,  even if the employer ultimately adopts the course of action recommended or supported by the objecting watchdog employee.

Although the Appellate Division,  in the case of a watchdog employee, a medical doctor who worked for a manufacturer of medical devises, ruled that a higher standard was to be applied to watchdogs and monitors,  whereby a watchdog employee must show a more difficult element to prevail in a New Jersey Whistleblower retaliation claim than do other non-watchdog employees, fortunately for workers’ rights, the New Jersey Supreme Court disagreed and held that the CEPA statute did not carve out an exception for monitors and watchdogs, and that CEPA does not require more of them to prevail in a valid New Jersey Whistleblower claim than any other non-watchdog employees. Lippman v. Ethicon, Inc., 222 N.J. 362 (2015).

At issue was whether a “watchdog” employee, whose paid employment responsibilities entail securing compliance with a relevant standard of care and knowing when an employer's actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientious Employee Protection Act.

In this matter, Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination in May 2006. For the majority of his employment, Lippman served as vice president of medical affairs and chief medical officer of Ethicon. He was responsible for reviewing and determining the safety of products, medical reviews, and medical writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the health risks posed by Ethicon's products and provide medical input regarding any necessary corrective measures with respect to their products in the field.

Dr. Lippman objected to the proposed or continued sale and distribution of certain Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal and state laws and regulations. In some instances, Lippman told his employer that a particular product should not go to market or  should be recalled, or that further research was necessary. Although  Ethicon executives and other members of the boards whose interest and expertise aligned with Ethicon's business priorities gave blow-back to him for his recommendations and opinions, Ethicon ultimately followed many of Dr. Lipmann’s recommendations. In April 2006, plaintiff advocated the recall of a particular product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff's employment.

The Plaintiff in this case, Joel S. Lippman, M.D., alleged  CEPA violations under N.J.S.A. 34:19-3(a) and (c). Plaintiff Lippman alleged in his complaint that his employment was terminated due to his whistleblowing activities.  Plaintiff identified as his whistleblowing  actions that he reported a number of products as dangerous and in violation of the federal Food, Drug and Cosmetic Act,  21 U.S.C.A. §§ 301-399f.  He advised his employers that they either recall the products or perform further research and alleged that he was terminated shortly thereafter as a result.

The Appellate Division held that he was entitled to whistleblower protection and rejected the employer's arguments that Lippman's claims failed because Lipmann was a watchdog employee, CEPA did not apply to him. However, the Appellate Court also ruled that watchdog employees like Lippman had to prove an additional and more difficult  element than other employees in order to bring a CEPA claim. It injected a new element that would make it harder to bring a claim:  that watchdog employees had to demonstrate that they exhausted all internal means of securing the company's compliance or either refused to participate in the conduct.  

The New Jersey Supreme Court disagreed with the Appellate Division and fortunately for workers, the Supreme Court held that watchdog employees should not be held to a higher standard than other employees.  Lippman v. Ethicon, 222 NJ 362 (2015). In a unanimous decision, (Justice LaVecchica, writing for a unanimous Court) the Court held that New Jersey’s  CEPA's protections extend to the performance of regular job duties by watchdog employees, and that unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection. 

As a result of the Supreme Court’s ruling it this matter, employees who complain about their employer’s current or proposed business activity as part of  the regular course of fulfilling their job duties, may now find it easier to prevail,  even if the employer ultimately adopts the course of action recommended or supported by the complaining employee.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct or fraud, you may have a valid Whistleblower  claim. It is important to not sit on your rights and to contact a whistleblower attorney as soon as soon there has been such retaliation against you. 

If you feel you have been retaliated against because of these things, it is essential for you to contact an experienced, competent and compassionate employment discrimination attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the victim of the employer's illegal acts, discrimination or if you were terminated and believe that retaliation for asserting your rights or whistleblowing may have been a factor, please contact Hope A. Lang, Attorney at Law, today for a free consultation.

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