Whistleblower Law: Job Duty Exception May Not Apply to New Jersey Whistleblower Claims

New Jersey has an employee whistleblower law known as, the New Jersey Conscientious Employee Protection Act (CEPA). CEPA protects employees who report illegal activities in the workplace. Employers have argued that the law does not provide protection when the employee reports information which is part of the employee’s regular job duties (“the job duties exception”). In Kerrigan v. Otsuka America Pharmaceutical, Inc., 2014 U.S. App. LEXIS 5035 (3d Cir. March 18, 2014), the court recognized that a New Jersey appellate court recently found that there may not be a job duties exception to CEPA.

In Kerrigan, the Plaintiff employee was employed as a Senior Director Global Marketing, and was assigned to supervise the United States marketing of Samsca, a pharmaceutical drug. It was alleged that newsletters describing the drug failed to provide a “fair and balanced approach” as required by the Food and Drug Administration (FDA). The Plaintiff employee knew about the error and reported the compliance issue to the employer’s Legal, Medical Affairs and Compliance departments; reporting that the employer failed to report the violation to the FDA in accordance with the agency’s regulations. The employee also reported another failure to disclose information relating to the product to management. Around the same time, the employer investigated a company owned by the employee’s wife and a subsidiary of the employer’s parent for a conflict of interest violation, ultimately, the employer’s legal department determined that there was no conflict; nonetheless, the employee was terminated “for cause” for “putting the company at risk.”

The plaintiff employee filed ligation asserting several causes of action, including a claim under the New Jersey CEPA, arguing that the employer’s proffered reason for the termination of his employment was merely pretextual. Under CEPA it is unlawful for an employer to retaliate against an employee for reporting illegal or unethical workplace activities. To state a case under CEPA, an employee must demonstrate: (1) the employee reasonably believed that his employer’s conduct violated the law; (2) the employee performed a whistle-blowing” activity; (3) the employee suffered an adverse employment action; and (4) a causal connection existed between his whistle-blowing and the employer’s retaliation.

The District Court originally dismissed the whistleblower action holding that he employee could not have engaged in CEPA protected whistleblowing because his actions fell within his job responsibilities, relying on several New Jersey cases which had previously held that CEPA does not protect disclosures that are a regular part of the employee’s job responsibilities. In Kerrigan, the Third Circuit found that a more recent panel of the New Jersey Superior Court, Appellate Division in Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 75 A.3d 432 (N.J. Super. Ct. App. Div. 2013), expressed skepticism of the job duty exception doctrine, implying that there may be no such doctrine. Thus, the Third Circuit vacated the District Court’s order remand the case to the District Court.

For more information on the New Jersey Conscientious Employee Protection Act
and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2122136.html

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Filed under New Jersey Conscientious Employee Protection Act, Whistleblower

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