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New Jersey Supreme Court rules watchdog employees are afforded whistleblower protections
Jul 15, 2015 | Associated Press
New Jersey's Supreme Court has ruled that workers who monitor whether their employer complies with regulations are not barred from seeking whistleblower protections under state law. -
'Watchdog' employees can seek whistleblower protections, N.J. Supreme Court rules
Jul 15, 2015 | Nj.com
By Brent Johnson
Workers whose job is to monitor whether their employer complies with standards and regulations are not barred from seeking whistleblower protections under a state law designed to prevent retaliation against employees who speak out, the state Supreme Court ruled Wednesday. -
Justices: Whistleblower Law Protects 'Watchdog Employees'
Jul 15, 2015 | New Jersey Law Journal
By David Gialanella
The New Jersey Supreme Court has laid to rest the notion that the state law protecting whistleblowers doesn't apply to an employee whose essential function is to act as one. The unanimous court found "no support in [the Conscientious Employee Protection Act's] language, construction or application in this court's case law that supports that watchdog employees are stripped of whistleblower protection as a result of their position or because they are performing their regular job duties." -
NJ Expands Employer Liability In Ethicon Whistleblower Case
Jul 15, 2015 | Law360
By Martin Bricketto
A New Jersey Supreme Court decision Wednesday that so-called watchdog employees are covered under the state's whistleblower law could stifle employers' ability to take action against compliance personnel for legitimate business reasons without opening a door to litigation, some attorneys say. -
“Watchdog” Employees are Entitled to Full Protection Under CEPA
Jul 15, 2015 | New Jersey Appellate Law
By Bruce D. Greenberg
In 2013, the Appellate Division determined that so-called “watchdog” employees (that is, employees whose job it is to bring forward issues relating to, for example, product safety) are protected as whistleblowers by the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (“CEPA”). That ruling reversed a summary judgment for the defendants. The Appellate Division also “articulated a tailored standard for evaluating CEPA claims asserted by watchdog employees.” That opinion, reported at 432 N.J. Super. 378 (App. Div. 2013), was discussed here. Defendants sought Supreme Court review of the ruling that watchdogs could get CEPA protection, while plaintiff requested review of the reformulation of the CEPA elements. The Supreme Court granted both sides’ petitions for certification. -
Suing Ethicon
Jul 15, 2015 | Legal Profession Blog
By Legal Profession Prof
The New Jersey Supreme Court has held that a medical doctor employed by a medical device manufacturing company is protected by the state's whistleblower laws.
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New Jersey Supreme Court rules watchdog employees are afforded whistleblower protections
Jul 15, 2015 | Associated Press
TRENTON, New Jersey — New Jersey's Supreme Court has ruled that workers who monitor whether their employer complies with regulations are not barred from seeking whistleblower protections under state law.
In a unanimous ruling made public Wednesday, NJ.com reports that the court ruled in favor of Joel Lippman, who claims he was fired in 2006 in retaliation for raising concerns about product safety.
Ethicon, a subsidiary of Johnson & Johnson, argued that Lippman was fired because he engaged in an inappropriate relationship with someone who worked under him.
A trial court ruled that because his job was to raise issues about safety, he was not afforded whistleblower protections. But an appellate panel reversed that decision and the Supreme Court agreed.
An Ethicon spokesman says they appreciate the clarification in the law.
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'Watchdog' employees can seek whistleblower protections, N.J. Supreme Court rules
Jul 15, 2015 | Nj.com
By Brent Johnson
TRENTON--Workers whose job is to monitor whether their employer complies with standards and regulations are not barred from seeking whistleblower protections under a state law designed to prevent retaliation against employees who speak out, the state Supreme Court ruled Wednesday.
Advocates hailed the decision as a major victory for workers' rights, though business leaders feared it will open companies across New Jersey to more lawsuits.
New Jersey's highest court voted 5-0 in favor of Joel Lippman, who claimed he was fired from Ethicon, a subsidiary of New Brunswick-based Johnson & Johnson, in 2006 in retaliation for raising concerns about the safety of some products. Ethicon, which is based in Somerville, manufactures surgical devices.
Ethicon said Lippman, a vice president who helped oversee product safety, was fired because he engaged in an inappropriate relationship with someone who worked under his authority, according to court papers.
A trial court ruled that Lippman was not afforded whistleblower protections under New Jersey's Conscientious Employee Protection Act, saying that because it was his job to raise issues regarding product safety, he failed to show he performed a whistleblowing activity.
But an appellate panel reversed the decision, saying "watchdog employees" are the most vulnerable to retaliation because they frequently speak out and that state law "does not limit protection based on job title or function."
The state Supreme Court on Wednesday agreed.
Writing for the court, Justice Jaynee LaVecchia said there is no language in state law that strips watchdog employees of whistleblower protection "due to their position or because they are performing their regular job duties."
Bruce McMoran, Lippman's attorney, said the decision reinforces state law that the Conscientious Employee Protection Act "should be interpreted to protect all employees." He added that Ethicon's concerns "were really misplaced."
"Whistleblowers not only protect society, but also protect companies from huge errors," said McMoran, who is based in Wall.
Matthew Johnson, a spokesman for Ethicon, said the company appreciates "the clarification" from the court about state law.
"We look forward to a full trial, where we feel confident the evidence will show we appropriately terminated the employee for cause," Johnson said.
In Wednesday's decision, the Supreme Court overturned part of the appeals court ruling that set several benchmarks before watchdog employees could be covered under the whistleblower law.
The appellate panel had said that unless those employees refuse to participate in an employer's conduct, they must demonstrate they "pursued and exhausted all internal means of securing compliance."
But the Supreme Court court disagreed that watchdog employees must exhaust all means to qualify for whistleblower status, saying it "incompatible with prior precedent and imposes an obligation nowhere found in the statutory language."
The Supreme Court sent the case back to trial court for further proceedings.
Debra Coyle McFadden, interim director of the New Jersey Work Environment Council, said the decision praised the ruling.
"This decision not only protects employees, it protects all of us by making it more likely violations get reported," McFadden said. "This includes violations affecting public safety and health, the environment, and financial security of individual households and businesses."
But Michele Siekerka, president of the New Jersey Business & Industry Association, said said the decision "dramatically increases the probability that whistleblower claims may be brought against New Jersey businesses."
"The burden of an expanded whistleblower law comes on top of a continuing series of mandates that are being imposed on our members," Siekerka said. "When added to paid sick leave, an increased minimum wage, increased costs resulting from the Affordable Care Act, and a proposed increased in worker's compensation costs the state's economic climate becomes far less friendly to business dramatically impacting the predictability and confidence that inspires our members to invest."
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Justices: Whistleblower Law Protects 'Watchdog Employees'
Jul 15, 2015 | New Jersey Law Journal
By David Gialanella
The New Jersey Supreme Court has laid to rest the notion that the state law protecting whistleblowers doesn't apply to an employee whose essential function is to act as one.
The unanimous court found "no support in [the Conscientious Employee Protection Act's] language, construction or application in this court's case law that supports that watchdog employees are stripped of whistleblower protection as a result of their position or because they are performing their regular job duties."
The court, though it agreed with the intermediate appellate ruling in principle, also scaled back that court's holding that so-called "watchdog employees" have an enhanced burden of proof in asserting a CEPA claim.
Plaintiff Joel Lippman, a medical doctor, claimed he engaged in whistleblowing activities while employed as a vice president at two Johnson & Johnson subsidiaries: Ortho-McNeil Pharmaceutical, where he was vice president in charge of clinical trials from 1990 to 2000; and Ethicon, a company that makes surgical products, where he was vice president of medical affairs and sat on internal global management, products and quality boards from 2000 until his termination, according to court documents.
Lippman's function, at least in part, was to help decide when a product was dangerous and necessitated a costly recall. His alleged whistleblowing activity over the years involved opposing the release of or pushing for the recall of seven products he viewed as dangerous or defective, including the Ortho Evra contraceptive patch and Panacryl surgical sutures, according to court documents.
The court noted at least some evidence of push-back against Lippman in those instances, by board members on the business side rather than the medical side.
Ethicon fired him in 2006, saying it was for a sexual relationship with a subordinate, while Lippman claimed the firing was retaliatory.
Middlesex County Superior Court Judge Edward Ryan dismissed the case on summary judgment, relying on Massarano v. New Jersey Transit, a 2008 Appellate Division ruling.
The precedential decision in Massarano said plaintiff Barbara Massarano—a security operations manager for a New Jersey Transit security contractor who claimed she was fired for alerting supervisors that blueprints for bridges, tunnels, gas lines and other structures had been dumped in a publicly accessible recycling bin—could not sue under CEPA.
The appeals court said Massarano was "merely doing her job."
Similarly, Ryan said "it was [Lippman's] job to bring forth issues regarding the safety of drugs and products" and he thus "failed to show that he performed a whistleblowing activity."
In September 2013, an Appellate Division panel led by Judge Jose Fuentes reversed, saying it disagreed with Massarano and the idea that "an employee's job title or employment responsibilities should be considered outcome determinative."
Fuentes called watchdog employees "the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety."
The panel did impose additional requirements on watchdog employees—requiring them to show, in addition to the typical elements of the CEPA claim, that they either exhausted all possible internal remedies or refused to participate in the objectionable conduct alleged.
Both sides appealed. Ethicon challenged the appeals court's main holding, while Lippman challenged the enhanced burden of proof.
Ethicon maintained that a CEPA provision—which requires a whistleblower to "object to" a policy or practice in order to make out a claim—shows the statute is meant to protect only employees who engage in conduct above and beyond their normal job duties, since an employee cannot logically "object to" his or her own core function.
The company also argued that reading CEPA to cover watchdog employees would interfere with businesses' ability to govern themselves by making it impossible to discipline or fire such an employee without risking liability.
Lippman argued that Massarano was misapplied after the defense seized on the court's observation that the plaintiff was "merely doing her job." He added that a "job duties exception" would weaken the statute.
There were numerous amici at the Appellate Division and Supreme Court levels. Among them were the New Jersey Business & Industry Association, which urged limiting CEPA's application to watchdogs, and the New Jersey Association for Justice (NJAJ)—the state's principal plaintiffs' bar group—which took the opposing position.
On July 15, the Supreme Court, led by Justice Jaynee LaVecchia, affirmed the Appellate Division's holding, and removed the additional proof requirement the panel imposed.
CEPA's language "does not define employees protected ... as inclusive of only those with certain job functions," and "no opinion from this court has read into CEPA's definition of an 'employee' ... any restriction to discrete classes of employees," LaVecchia said.
The court brushed off Ethicon's argument about the "objects to" language.
The plain meaning of the word "object," LaVecchia said, "is neither ambiguous, nor indicative of a requirement that employees go beyond or contradict their job duties." And it would be "wholly incongruent to strain the normal definition of 'object' into some implicit requirement that limits a class of employee to whistleblower protection only from actions taken outside of normal job duties," she added.
To the extent Massarano has been relied upon for the basis of a job-duties exception, LaVecchia said, "Any such reliance misperceives the case's essential finding of no retaliation and results in an overextension of Massarano's significance."
Supreme Court case law has "indicated only a contrary approach to CEPA coverage for individuals in positions of responsibility for corporate compliance with law and public policy," she added.
The court also, at Lippman's urging, was "compelled to disapprove of the panels' formulation" of a heightened burden of proof for watchdog employees asserting CEPA claims.
That obligation is "nowhere found in the statutory language," LaVecchia said.
Lippman's lawyer, Bruce McMoran of McMoran, O'Connor & Bramley in Wall, said the court "used Lippman to reinforce the application of CEPA as remedial legislation that should be interpreted liberally."
For the client, McMoran added: "Nine years after he filed his complaint, Dr. Lippman's finally going to get a chance to go to trial."
Andrew Dwyer of the Dwyer Law Firm in Newark, who represented the NJAJ and other pro-plaintiff amici, said Ethicon's position was "essentially woven out of whole cloth by the management bar based on a stray sentence" in the Massarano decision.
"This argument from day one was ridiculous," he said.
Dwyer said a converse ruling would have allowed employers to skirt CEPA liability by writing policies requiring all employees to report wrongdoing.
"It would've essentially created an exception that would've eaten the statute," he said.
Ethicon spokesman Matthew Johnson said in a statement: "We appreciate the clarification from the New Jersey Supreme Court on application of the New Jersey Conscientious Employee Protection Act (CEPA). We look forward to a full trial, where we feel confident the evidence will show we appropriately terminated the employee for cause."
Ethicon's counsel, Francis Dee of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, didn't return a call for comment on the ruling; neither did Adam Saravay of Newark's McCarter & English, who argued for the management-side amici.
But one amicus—the New Jersey Civil Justice Institute, a group that advocates for tort reform—said in a statement by president Marcus Rayner that the decision "highlights an unforeseen problem with the CEPA statute that merits broader discussion.
"Employers need to be able to hire competent people to evaluate risk and product safety, and they need to be able to discipline them for unrelated reasons, like sexual harassment. CEPA is sufficiently broad that this is now problematic for New Jersey employers."
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NJ Expands Employer Liability In Ethicon Whistleblower Case
Jul 15, 2015 | Law360
By Martin Bricketto
Law360, Jersey City (July 15, 2015, 6:49 PM ET) -- A New Jersey Supreme Court decision Wednesday that so-called watchdog employees are covered under the state's whistleblower law could stifle employers' ability to take action against compliance personnel for legitimate business reasons without opening a door to litigation, some attorneys say.
In an opinion written by Justice Jaynee LaVecchia, the unanimous court allowed Dr. Joel Lippman to press his Conscientious Employee Protection Act claim that Johnson & Johnson's medical device unit Ethicon Inc. fired him for advocating the recalls of allegedly dangerous products. CEPA's protections extend to watchdog employees like Lippman when they are performing their regular job responsibilities, the court said.
The justices also struck down the state Appellate Division new, 2013 standard for evaluating watchdog employees' whistleblower claims, finding the standard represented an improper burden on such plaintiffs. Justice Anne M. Patterson and Judge Mary Catherine Cuff, who is temporarily assigned to the court, did not participate in Wednesday's decision.
A blow to employers, the ruling leaves them facing a class of untouchable employees comprising “professional whistleblowers with ready-made retaliation claims if they voice concern with some decision or action of their employer,” according to Ford Harrison LLP partner Mark A. Saloman, who wrote an amicus brief in the case for the Employers Association of New Jersey.
“These untouchables — including those who reject criticism, are irresponsible, cannot get along with co-workers, or are simply underperforming — cannot be demoted, disciplined or fired so long as they perform their job duties in good faith,” Saloman said. “This severely impacts employers’ recognized right to manage their internal operations, a right this decision completely ignores.”
A former vice president of medical affairs and chief medical officer with Ethicon, Lippman was responsible for, among other things, sounding off about product safety, and he worked with an internal quality-control board that determined the necessity of recalls and other corrective actions. Ethicon has claimed Lippman was fired over an inappropriate sexual relationship with a subordinate.
Ethicon won a trial court decision that CEPA did not protect Lippman in performing his regular job duties, and while the Appellate Division reversed that holding, the panel did say that watchdog employees have to exhaust all internal avenues of securing compliance before they can mount a CEPA claim.
Lippman contended that latter element of the appellate decision wrongly stuck watchdog employees with tougher proof requirements under the statute, and the justices agreed Wednesday in an across-the-board win for the plaintiff.
“By its very terms, the statutory cause of action created by CEPA applies equally to all employees,” the opinion said. “There is no evidence of legislative intent to have the act operate any other way. Accordingly, we hold that there can be no additional burden imposed on watchdog employees seeking CEPA protection, unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection.”
Ethicon and its supporters wanted the Supreme Court to rewrite the statute, but the court applied the law as it was written, according to Andrew Dwyer of The Dwyer Law Firm LLC, who represented the New Jersey chapter of the National Employment Lawyers Association and other amicus participants.
“The decision reaffirmed the underlying remedial purpose of CEPA,” Dwyer said. “If you hog-tie the statute with a series of ridiculous obstacles and exceptions, the statute becomes useless.”
In the opinion, Justice LaVecchia noted that CEPA defines an employee as “any individual who performs services for and under the control and direction of an employer for wages or other remuneration” and doesn't distinguish between job functions. Case law has only extended the reach of the statute since its 1986 enactment, she added.
“There is simply no support in CEPA’s definition of 'employee' to restrict the act’s application and preclude its protection of watchdog employees,” the opinion said.
Additionally, language in the law that protects an employee when he or she “objects to, or refuses to participate in any activity, policy or practice” of an employer based on a reasonable belief that it's illegal, fraudulent or contrary to public policy doesn't require the worker to be acting outside his or her regular duties, either on the face of the statute or through a closer reading of terms such as “object,” Justice LaVecchia said.
“It would be wholly incongruent to strain the normal definition of 'object' into some implicit requirement that limits a class of employee to whistleblower protection only for actions taken outside of normal job duties,” the opinion said.
The defendants' view of CEPA didn't make sense, according to Ravi Sattiraju of the Sattiraju Law Firm PC.
“Most people aren't going to go around looking for things to complain about that aren't part of their daily routine,” Sattiraju said. “[The decision] goes back to the original intent of the statute. It helps the whole state because people can feel comfortable coming forward with concerns that they have.”
But Marcus Rayner, president of the New Jersey Civil Justice Institute, said the case exposes unforeseen problems with CEPA that lawmakers will have to address. That's especially true for life sciences and other industries where companies have to engage in a robust and frank analysis on the risks and benefits of products, he said.
“CEPA didn't anticipate some of the nuances required here, particularly for someone whose job is to be part of that judgment call process,” Rayner said.
The other big victory for Lippman was knocking out the exhaustion requirement that the Appellate Division imposed. That requirement isn't found anywhere in the statutory language, Justice LaVecchia said.
“For the same reasons cited earlier, courts should not rewrite plainly worded statutes,” she said.
The exhaustion requirement would have badly undermined CEPA, according to Dwyer. It only applied to watchdog employees, and a would-be whistleblower might not know if he or she fits that category, which isn't defined in the statute, he said. It could have also been unclear when an employee had exhausted all internal complaint processes, according to Dwyer.
While Dwyer said such a requirement would have discouraged valid whistleblower claims, the Supreme Court's ruling could have a chilling effect when it comes to companies voluntarily placing people in watchdog roles, according to Christine A. Amalfe, who chairs the employment and labor law department of Gibbons PC.
“For some businesses, there's a requirement that they have people in certain roles, but if it's a voluntary position that the employer thinks might make them better, they may decide they don't want to take the risk associated with putting someone in that position,” Amalfe said.
For most CEPA cases, where the “rubber meets the road” will continue to be whether an employee suffered adverse action for alleged whistleblowing or some lawful business reason, according to Richard J. Cino, the office managing shareholder of Jackson Lewis PC's Morristown, New Jersey, office.
The opinion is a “call back to the basics” for employers and their attorneys, Cino said. That means “making well-informed decisions regarding employees and making certain that before any adverse action has been taken that there is sufficient factual support for those decisions so that, if challenged, the employer has the ability to say, 'No decision was made because of what the employee believes to be "whistleblowing.” Rather, the decision was made because of these legitimate business reasons.'” Cino said.
An Ethicon spokesman said the company is looking forward to a full trial, where it feels confident that it can establish that Lippman was terminated for cause. An attorney for Lippman did not return a request for comment.
Lippman is represented by Bruce P. McMoran and Michael F. O’Connor of McMoran O'Connor & Bramley PC.
Ethicon and J&J are represented by Francis X. Dee and Stephen F. Payerle of McElroy Deutsch Mulvaney & Carpenter LLP.
The case is Lippman v. Ethicon Inc. et al., case number 073324, in the Supreme Court of the State of New Jersey.
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“Watchdog” Employees are Entitled to Full Protection Under CEPA
Jul 15, 2015 | New Jersey Appellate Law
By Bruce D. Greenberg
Lippman v. Ethicon, Inc., ___ N.J. ___ (2015). In 2013, the Appellate Division determined that so-called “watchdog” employees (that is, employees whose job it is to bring forward issues relating to, for example, product safety) are protected as whistleblowers by the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (“CEPA”). That ruling reversed a summary judgment for the defendants. The Appellate Division also “articulated a tailored standard for evaluating CEPA claims asserted by watchdog employees.” That opinion, reported at 432 N.J. Super. 378 (App. Div. 2013), was discussed here. Defendants sought Supreme Court review of the ruling that watchdogs could get CEPA protection, while plaintiff requested review of the reformulation of the CEPA elements. The Supreme Court granted both sides’ petitions for certification.
The case has been closely watched in the business community (five business organizations and more than two dozen labor, consumer, and environmental organizations submitted amicus curiae briefs in the Supreme Court). Today, a unanimous Court, in an opinion by Justice LaVecchia that applied the de novo standard of review, ruled essentially for plaintiff. The Court affirmed the Appellate Division’s ruling that watchdog employees are entitled to the same CEPA protections as any other employee, and disagreed with the way that the Appellate Division’s formulation of the elements for a watchdog employee to bring a CEPA claim, modifying the Appellate Division’s opinion to that extent.
The issue of CEPA protection for watchdogs consumed most of the opinion, and the Court’s ruling was essentially based on the plain language of CEPA. The statute defines a protected “employee” as “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” As Justice LaVecchia observed, “[t]here are no exceptions to that generic definition contained in the Act,” and prior cases have taken “an inclusive approach in determining who constitutes an employee for purposes of invoking the protection provided through this remedial legislation.” Applying the plain language as the best evidence of legislative intent, as well as the canon that remedial statutes are to be liberally construed to achieve “its important social goals,” Justice LaVecchia upheld the Appellate Division’s conclusion that watchdog employees are to receive the same protection under CEPA as any other employee receives.
The Court rejected defendants’ argument that only whistleblowing outside the scope of an employee’s duties is protected by CEPA. Defendants had relied on N.J.S.A. 34:19-3(c), which protects any employee who “objects to, or refuses to participate in any activity, policy or practice” of the employer, for that contention. Defendants asserted that since a watchdog’s job is to act in the corporation’s interest, a watchdog’s whistleblowing is therefore not “object[ing].” Justice LaVecchia found that the plain meaning of “object” refuted that argument, and in any event the liberal construction mandate defeated defendants’ argument. Like the Appellate Division, the Supreme Court disapproved of Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008), on which the Law Division had relied in granting summary judgment to defendants.
One minor aspect of the Court’s otherwise excellent opinion appears to be mistaken. In a footnote, the Court observed that defendants had cited unpublished opinions that they said relied on Massarano. The opinion then stated “[u]npublished opinions have no precedential value and are not to be cited in argument to the courts of this State pursuant to the Court Rules. See R. 1:36-3.” In fact, Rule 1:36-3 permits parties to cite unpublished opinions to courts as long as “the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.” That rule does, however, with some exceptions, provide that “no unpublished opinion shall be cited by any court,” which may be what the Court here was referring to.
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Jul 15, 2015 | Legal Profession Blog
By Legal Profession Prof
The New Jersey Supreme Court has held that a medical doctor employed by a medical device manufacturing company is protected by the state's whistleblower laws.
From the court's summary
In this appeal, the Court considers whether an employee, 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, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientous [sic] Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.
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, plaintiff served as worldwide vice president of medical affairs and chief medical officer of Ethicon. He was responsible for safety, 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. On numerous occasions, plaintiff 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, plaintiff opined that a particular product should not go to market, should be recalled, or that further research was necessary. Although he received “push back” from executives and other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon ultimately followed many of his 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.
Held
CEPA’s protections extend to the performance of regular job duties by watchdog employees. 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...
Although the Court agrees with the Appellate Division’s finding that watchdog employees are entitled to CEPA protection when performing their ordinary job duties, it disagrees with the panel’s reformulation of the elements required to establish a prima facie CEPA claim, as set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The panel’s requirement that watchdog employees demonstrate pursuit and exhaustion of all internal means of securing compliance is incompatible with prior precedent and imposes an obligation nowhere found in the statutory language. Where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Consequently, the Court modifies the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by the statute’s terms. CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim unless and until the Legislature expresses its intent that such employees meet a special or heightened burden. (pp. 35-38.
The judgment below was affirmed as modified and the case was remanded. (Mike Frisch)
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