Lippman v. Ethicon, Inc., 222 N.J. 362 (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.