On January 20, the New Jersey Supreme Court heard oral arguments in one of its biggest cases of 2015, Lippman v. Ethicon, Inc. The court will decide if an employee performing activities as part of his or her core job functions, on that basis alone and without further conduct by the employee, can seek whistleblower protection under the Conscientious Employee Protection Act (CEPA) if they are fired.
The day after the case was heard, NJCJI hosted a policy teleforum on the case featuring Adam Saravay, a partner at McCarter & English, who co-authored NJCJI & NJBIA’s joint amicus brief and participated on the organizations’ behalf in the high court’s oral arguments on the case. During the call, Saravay provided an overview of the case and its implications before sharing his insights on how oral arguments in the case went.
Whistle-blowing under the state’s Conscientious Employee Protection Act (CEPA) has long been understood to mean something different than doing your job if you are tasked with being an in-house watchdog. Efforts by the plaintiff’s bar to upend this area of law to allow for more lawsuits should be dismissed.
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 held oral arguments on the case on January 20, 2015.
NJCJI’s Amicus Brief
The New Jersey Civil Justice Institute and the New Jersey Business and Industry Association filed an amicus curiae brief urging the high court to overturn the appellate court’s ruling. 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.
The New Jersey Supreme Court should reverse the appellate court’s ruling, and reaffirm that CEPA does not protect people who are hired to review and evaluate safety and compliance concerns when they do their jobs.