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Many industries have paid employee monitors, euphemistically called “watchdogs” who may report wrongdoings directly to the employer itself regarding the employer running afoul of the law. NJ employee watchdogs including internal auditors, HR executives, pharmaceutical and medical researchers cannot have the terms of their employment diminished because of their whistleblowing. Employees whose paid responsibilities are specifically to monitor, evaluate the duties, functions and products of employer, or to submit reports of legal wrongdoings directly to the employer itself 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., “CEPA”.

If you are a whistleblower who is experiencing retaliation, you should contact this office immediately for a free consultation. I have represented executive, middle and lower tier employees who suffered retaliatory adverse actions as result of their whistleblowing and was successful in recovering financial compensation for their lost wages, both past lost wages and projected lost future earnings, reputational harm, and emotional distress damages. If you think you are being pushed out of your job because of your protected activity, you should contact this office immediately for a free consultation. CEPA protection extends to NJ employees who live and work out-of-state.

Auditors, pharmaceutical researchers, and other watchdog monitors have employee whistleblower protection under CEPA. They have the same protection from employer retaliation for whistleblowing to the employer, in the same manner as other non-watchdog employees are protected from retaliation. In Lippman v. Ethicon, Inc., 222 N.J. 362 (2015) the Supreme Court overruled the Appellate Division which had ruled that a higher standard was to be applied to employees in CEPA cases who worked as 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 NJ watchdog employees, the NJ Supreme Court disagreed with the lower Appellate Court and held that the CEPA statute did not carve out an exception for monitors and watchdogs. The NJ Supreme Court held that CEPA does not require more of monitors to prevail in a valid New Jersey Whistleblower claim than any other non-watchdog employees.

Prevailing in a CEPA Claim Requires Proving Four Elements:

1. You engaged in whistleblower activity as defined in the statute below.

2. Your belief was reasonable. You reasonably believed the employer’s conduct was illegal by violating a law or regulation or clearly mandated public policy regarding health and safety. If the employer was not in fact violating the law, but your belief was a reasonable belief, even if not correct, it satisfies this element.

3. Your employer took an adverse employment action against you, such as your hours are slashed, or allowing harassment/hostile work environment also may qualify as an adverse action.

4. The adverse action would not have occurred had it not been for your whistleblowing. In legal terms this is known as the “causal connection”. You must able to prove there was a causal connection between the whistleblowing and the adverse action you suffered.

What Is Prohibited under CEPA

Under CEPA, an employer cannot take any retaliatory action against you, an employee, because you disclosed or threatened to disclose to a supervisor, or objected to or refused to participate in any activity, policy or practice which you reasonably believe is:

(1) A violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or

(2) If you are a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

(2) Is fraudulent or criminal.

What if my employer adopts the same course of action that I recommended at time that I whistleblew? Do I still have a claim?

YES. 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, 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.

Watchdog employees fired for being forthcoming about fraud in their reports and opinions may have whistleblower claims. For example, internal auditors are one such category of employee watchdogs. An auditor report can be an unqualified report or a qualified report. An unqualified report means that the finances have been reported correctly according to GAAP. A qualified report is different because there are points of significant concern or it could due to the scope of the auditor’s work is too limited to have it be unqualified.

Many audit reports contain an opinion by the auditor: