The Conscientious Employee Protection Act suffered a blow when a 2008 appellate court decision involving an employee from NJ Transit found that workers whose jobs require they act as compliance officers or "watchdogs" did not have protection against retaliation under the law, members of the New Jersey Work Environment Council, made up of 27 civic, union and consumer organizations, said today.
The state highest court agreed to take up the case in the fall.
"At stake is whether CEPA will remain a viable statute," Andrew Dwyer, one of the council's attorneys, said in a press conference outlining the council's arguments in the "friend of the court" brief they filed last week.
"If the statute is judicially amended to provide that an employee is not protected if her complaints fall within her regular job duties, then employees who are best positioned to identify and object to illegal or dangerous practices will (have) their jobs at risk if they complain," Dwyer said.
The plaintiff in the appellate case, Barbara Massarano, a security operations manager, reported to her supervisor's boss that she had found sensitive building blueprints in a public recycling can, in what she saw as a safety breach. She was fired, she said, for speaking up. When she sued under the whistleblower law, the appeals court ruled she did not have any special protection because said "was merely doing her job as the security operations manager," according to the decision.
Under this reasoning, "If the janitor who swept the floor made the same report, he would be covered," said Bennett Zurofsky, another attorney who co-wrote the brief.
Another appeals court on a similar matter found in favor of the whistleblower, however. A physician and senior executive for Ethicon, Joel Lippman, sued over his dismissal, saying it stemmed from his opposition to releasing recalled products. A trial court dismissed the case based on the Massarano whistleblower decision, but the appellate court reversed it.
"The facts of this case illustrate the gaping holes this line of reasoning creates in the wall erected by the Legislature to protect whistleblowers against retaliation," according to the appellate decision. Employees like Lippmann were "the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are."
Rev. Fletcher Harper, executive director of GreenFaith, a group of environmental and religiously-conscious members, said in the era of auto recalls like the one at General Motors, "there is no rationale that justifies rolling back of the statute."
The New Jersey Business and Industry Association opposes the latest appeals court decision.
Christine Stearns, vice president of legal affairs for the business group, said “the appellate court went too far when it expanded whistleblower protection to the performance of regular job duties … The ruling will have a chilling effect on important product safety and compliance activities.”
Stearns also said changes to the whistleblower law should be made by lawmakers and not the courts.