New Jersey Whistleblower Developments: The Job Duties Exception
In New Jersey, there is a whistleblower law called the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq. This law is designed to protect employees who report activities they believe are illegal, unethical or immoral in the workplace. Many employers believe there is an exception to the general rule known as the “job duties exception.” Under this supposed exception, CEPA does not protect employees who report activities that are part of their typical job duties. However, a recent case, Kerrigan v. Otsuka America Pharmaceutical, Inc., 2014 U.S. App. LEXIS 5035 (3d Cir. March 18, 2014), held that perhaps there is not such an exception after all.
In the Kerrigan case, the Plaintiff’s job was to supervise the marketing of a drug in the U.S. There were concerns the drug’s written description was not fair and balanced — as required by the FDA. The Plaintiff reported the mistake to his company’s legal and compliance departments. While this was happening, the Plaintiff’s employer suspected there may be a conflict of interest with an unrelated company that was owned by the Plaintiff’s wife. Although the legal department determined there was no conflict of interest, Plaintiff’s employer fired him for putting the company at risk. In response, the Plaintiff filed a lawsuit claiming whistleblower retaliation for making his disclosures to the company’s legal and compliance departments.
Under CEPA, employers cannot retaliate against employees for reporting illegal or unethical practices. To have a valid whistleblower claim, Plaintiff’s must show: (1) the employee reasonably believed the employer’s conduct was against the law; (2) the employee engaged in a “whistle-blowing” activity; (3) the employee was the victim of adverse employment action; and (4) the whistle-blowing is causally connected with the employer’s retaliation.
Originally, the trial court dismissed the Plaintiff’s case because the Plaintiff’s actions were within his job responsibilities and therefore not protected under CEPA. The dismissal was based on a number of cases that held CEPA does not protect reports regarding “regular job responsibilities”. However, the Court noted that a recent panel of the New Jersey Superior Court was skeptical of the job duty exception. The higher court implied there may not be such an exception. Accordingly, the Third Circuit Court of Appeals vacated the original dismissal and remanded the case back to the District Court.
If you believe your employer has retaliated against you or someone you know for disclosing or threatening to disclose illegal or wrongful conduct, our New York and New Jersey whistleblower lawyers can help you. Call us at (973) 509-8500 to schedule a free consultation