State Supreme Court to Hear Arguments on Whistleblower Protection

Some parties to litigation fear law will be weakened by narrowing definition of who qualifies as a whistleblower

Richard J. Hughes Justice Complex in Trenton, home of the NJ Supreme Court.
For years, New Jersey was considered to have some of the strongest whistleblower protections in the nation, shielding employees from retaliation from their employers when they tried to report corporate wrongdoing.

Those safeguards could unravel in a series of court cases to be taken up by the state Supreme Court this fall, according to more than two-dozen environmental, labor, and consumer organizations, which have joined the litigation.

The issue revolves around which employees are shielded under the law, a question that has been raised by conflicting appellate court decisions, one of which narrowed those workers who would be protected by the act, the groups said yesterday.

In one case, the court ruled that a security operations manager for a NJ Transit contractor had no whistleblower protection even though she was fired for reporting security breaches that could have made the system vulnerable to attack. The court decision said she was “merely doing her job.’’

“It really tears the guts’’ out of the law, dubbed the Conscientious Employee Protection Act (CEPA), said Bennet Zurofsky, one of the attorneys who filed a brief with the court on behalf of the public interest groups. “They are the whistleblowers who need the most protection, and the burden should be on employers to show retaliation did not occur.’’

Andrew Dwyer, the other attorney who prepared the brief, agreed.

“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 put their jobs at risks if they complain,’’ Dwyer said.

In a brief filed by the New Jersey Business & Industry Association and the New Jersey Civil Institute, the groups argued that the appellate court’s decision upholding the law (Lippman v. Ethicon), creates disincentives that are contrary to good business practices and public policy.

“This could be bad policy — bad for businesses, bad for consumers,’’ according to the brief.

“The ruling will have a chilling effect on important product safety and compliance activities,’’ said Christine Stearns, vice president of health and legislative affairs for the NJBIA.

But others argued that since public agencies now have less resources to enforce laws, whistleblowers play a crucial role in identifying hazards and having them corrected, “It’s unthinkable we want less protections instead of more,’’ said the Rev. Fletcher Harper, executive director of Greenfaith, a group that unites people of diverse religious faiths on environmental issues.

“Our whistleblower law doesn’t just protect employees,’’ said Rick Engler, director of the New Jersey Work Environmental Council (WEC), a coalition of labor, environmental, and community groups. “It protects all of us by making it more likely that violations that affect the public will be reported. Responsible employers should support this public interest law, instead of looking for a backdoor way to essentially repeal it.’’

Zurofsky said what the business groups are advocating is a basic change in the law. “What the companies really want is lapdogs, instead of watchdogs,’’ he said.

“Every healthcare worker has a responsibility to report violations that affect public safety,’’ added Bernie Gerard, vice president of Health Professionals and Allied Employers (HPAE), the state’s largest healthcare union. “Removing whistleblower protection would be a huge blow to quality patient care in New Jersey.’’

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