Trends In N.J. Whistleblowing And Retaliation Law – 2014 Roundup

2014 was another busy year for developments in whistleblowing and retaliation law in New Jersey. This blog post summarizes noteworthy state and federal cases for employers to consider in the new year.

Conscientious Employee Protection Act

In 2014, New Jersey's lawmakers proposed a further expansion of the state's already broad whistleblower protection statute, the Conscientious Employee Protection Act ("CEPA"). In the wake of the "Bridgegate" scandal (a term that refers to employees in the Governor's office allegedly directing the closure of lanes leading to the George Washington Bridge), the Senate Labor Committee approved a bill (S768) that would provide public employees with express protection against retaliation when reporting a "substantial waste of public funds by a governmental entity or . . . an abuse of authority or gross mismanagement." The bill is now before the full Senate. For more on S768, please see our prior blog post.

2014 also saw significant whistleblowing cases reach the New Jersey Supreme Court. Earlier this year, the New Jersey Supreme Court refused to lower the bar for bringing a CEPA claim in Hitesman v. Bridgeway, Inc., 214 N.J. 235 (2014). According to the Court, to bring a CEPA claim based on complaints concerning "improper quality of patient care or conduct" or implicating "a clear mandate of public policy concerning the public health," a plaintiff must at a minimum, identify a source of law or other authority that sets forth a standard demonstrating a reasonable belief the employer engaged in the alleged misconduct. For more on Hitesman, please see our CEPA Roundup.

In another high profile case, Lippman v. Ethicon, Inc., No. A-65/66-13, the high court is considering the fate of the so-called "job-duties" exception to CEPA. Breaking with longstanding precedent, the Appellate Division had concluded that the plaintiff here could blow the whistle by merely performing the job functions for which he was hired to perform. For more on Lippman, check out our blog post/amicus brief filed before the NJ Supreme Court.

Also quite recently, the New Jersey Supreme Court agreed to hear another CEPA case in State v. Saavedra, No. A-68-13. In that case, the Appellate Division affirmed that a public employee may be indicted for stealing her employer's confidential documents, even where the employee took the documents to support her discrimination claims. The Appellate Division distinguished the criminal case in Saavedra from...