Quality-control workers gain protection under NJ’s whistleblower law

The New Jersey Supreme Court yesterday widened the state’s whistleblower law, ruling that employees whose jobs entail identifying health and safety risks are entitled to protection under the statute.

In a unanimous decision, the court largely affirmed an appeals court ruling that found whistleblower protections cover watchdog employees. Justice Jaynee LaVecchia wrote the 38-page decision.

The case was closely followed by advocates of the law, who argued that without being protected from employer retaliation, those whose job is to report health and safety issues may be less likely to speak out about problems they come across.

But business groups and others said the court’s decision broadens the law’s application and may make it harder for companies to manage its watchdog employees.

In reviewing the language of the Conscientious Employee Protection Act (CEPA), the court rejected arguments that it should not apply to employees whose job is to uncover workplace hazards and problems with products manufactured by a business.

“There is simply no support in CEPA’s definition of ‘employee’ to restrict the Act’s application and preclude its protection of watchdog employees,’’ the court ruled.

The case involved Ethicon Inc., a subsidiary of Johnson & Johnson and Dr. Joel Lippman, whose job was to provide medical opinions about the safety of Ethicon’s pharmaceutical products used for surgical procedures. On numerous occasions he had objected to the proposed or continued sale and distribution of Ethicon’s medical products, urging that they should not go to market, should be recalled, or that further research was needed.

In April 2006, he recommended a product be recalled, which the company eventually did. The next month Lippmann was fired because the company said he had an inappropriate relationship with someone in a department over which he had authority. He then filed a whistleblower lawsuit.

The case initially was dismissed by a lower court but reversed by a state appeals panel. Yesterday, the state Supreme Court essentially agreed with the Appellate Division, except it also ruled that watchdog employees do not have to demonstrate that they exhausted all internal complaint processes prior to being protected as whistleblowers.

Environmental, labor, and community organizations that had filed legal briefs in the case, hailed the ruling as saving the state’s whistleblower law, long viewed as one of the strongest in the nation.

“If the court had agreed with the employer’s argument, it would have opened a statutory hole big enough to drive a truck through and few, if any, employees would be able to rely upon its protections,’’ said Bennet Zurofsky, one of the attorneys who filed the brief.

In today’s tight fiscal times, public agencies often have difficulty in identifying resources to effectively enforce laws, according to Rev. Fletcher Harper, president of the New Jersey Work Environment Council and executive director of GreenFaith, a group that unites people of diverse religious faiths on environmental issues.

“In this context, whistleblowers a crucial role in identifying hazards and getting them corrected,’’ Harper said. “They are the community’s eyes and ears on the job, and this decision reinforces that they must not be silenced.’’

But a major business group expressed disappointment over the court’s ruling.

“This ruling dramatically increases the probability that whistleblower claims may be brought against New Jersey business,’’ said Michele Sierkerka, president and CEO of the New Jersey Business & Industry Association.

Marcus Rayner, president of the New Jersey Civil Justice Institute, said the decision will make it more difficult for companies to manage employees whose job is to evaluate risks associated with their products and practices.

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NJ Spotlight, an independent online news service on issues critical to New Jersey, makes its in-depth reporting available to NewsWorks.