Can an employee performing activities as part of his or her core job functions, on that basis alone and without further conduct by the employee, seek whistleblower protection under the Conscientious Employee Protection Act (CEPA) if they are fired? This is the question the New Jersey Supreme Court is going to answer when it decides the case Lippman v. Ethicon, Inc.
Dr. Joel S. Lippman, M.D. was employed by Ortho-McNeil Pharmaceuticals, Inc (OMP) and Ethicon, Inc., both subsidiaries of Johnson & Johnson, from 1990-2000 and 2000-2006 respectively. At Ethicon, Lippman served as the company’s World-Wide Vice-President of Medical Affairs and Chief Medical Officer. His job involved reviewing possible adverse effects of products that had been brought to Ethicon’s attention by others, and serving on the company’s Quality Board, which was responsible for reviewing and making decisions regarding product safety and efficacy.
In 2006 Ethicon fired Lippman. Ethicon asserts Lippman was terminated after it was discovered he had an inappropriate relationship with a coworker who later sued for harassment. Lippman claims Ethicon used the relationship as a pretext to fire him for whistle-blowing, and is seeking protection under CEPA.
The trial court granted Ethicon’s motion for summary judgment, finding that it was Lippman’s job to bring forward concerns, so his actions did not count as whistleblowing protected by CEPA. The appellate court reversed and remanded, holding that CEPA does protect employees who are hired to be in-house whistleblowers.
The New Jersey Supreme Court has now taken up the case, and the New Jersey Civil Justice Institute and the New Jersey Business and Industry Association have filed a motion to participate as amicus curiae. NJCJI and NJBIA urge the high court to reverse the appellate court’s ruling and reaffirm that CEPA does not protect people who are hired to be in-house whistleblowers.
Keeping the distinction between actual whistleblowing covered by CEPA and activities that are part of an employee’s job is important for several reasons. First and foremost, framing internal, debate-based decision-making as whistleblowing that is actionable under CEPA will discourage companies from using that system, which is recognized as very effective, as a method of compliance control and risk management. This would likely skew decisions made about products in the future and stifle innovation, leading to decreased economic development and job creation in our state. Furthermore, it would become difficult to manage employees with compliance-related jobs because they could file a CEPA claim any time their employer makes a decision negatively impacting their employment.
Whistle-blowing under CEPA has long been understood to mean something different than doing your job if you are tasked with being an in-house watchdog. The court must maintain this distinction in deference to precedent and the legislature’s responsibility for policy-making.
Click here to read NJCJI & NJBIA’s full brief.