NJ Supreme Court to Decide Whether “Watchdog Employees” are Entitled to Whistleblower Protection

By Harris Neal Feldman

After disagreement among the intermediate appellate courts in New Jersey, the state’s Supreme Court has granted certification to decide the issue of whether “employees who are responsible for monitoring and reporting on employer compliance with relevant laws and regulations — so-called ‘watchdog employees’ — [are entitled to] whistleblower protection under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., and, if so, under what circumstances?”

In Lippman v. Ethicon Inc. et al., an executive alleged he was terminated because he raised safety concerns about a product that led to a recall. The employer asserted that he was not terminated because he was a whistleblower but for other legitimate reasons. The employer also asserted that the employee was simply doing his job in raising such safety concerns and was not entitled to CEPA protection. The trial court found that plaintiff failed to establish a prima facie case under CEPA, but the Appellate Division reversed, holding that CEPA should be read broadly to avoid the potential for retaliation for whistleblowing, and that plaintiff properly asserted a claim under CEPA, regardless of whether his job duties included reporting safety concerns.

Prior Appellate Division decisions over the last few years have recognized the exception to CEPA protection for employees whose jobs included such reporting requirements. For example, see “Reviewing NJ’s Novel Whistleblower Exception.”

Check our blog for further updates as this case proceeds through briefing and argument in the New Jersey Supreme Court.