January 28, 2022

Volume XII, Number 28

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Can Employees “Blow the Whistle” by Simply Working? EANJ (Employers Association of New Jersey) says No.

On behalf of the Employers Association of New Jersey (“EANJ”), Proskauer attorneys Mark Saloman, Daniel Saperstein, Allana Grinshteyn, and Nicholas Tamburri submitted an amicus brief on an important whistleblowing issue pending before New Jersey’s Supreme Court.

In Lippman v. Ethicon, Inc., one appellate panel broke with long-standing precedent when it held that “watchdog” employees can “blow the whistle” under the Conscientious Employee Protection Act (“CEPA”) by simply performing tasks and functions of the job for which they were hired.  In its briefing, EANJ strongly urged the Supreme Court to reject this reading of CEPA, pointing to the plain language and intent of the statute, as well as extensive case law, that instructs that activities which are part and parcel of an employee’s assigned responsibilities cannot amount to “whistleblowing.”  To say otherwise, EANJ stressed, creates a class of at-will, “watchdog” employees who could never be the subject of an adverse employment action—regardless of their performance—without simultaneously causing the employer to trigger a potential whistleblower violation. 

To avoid this untenable result, EANJ asked the Supreme Court to reaffirm that any employee—“watchdog” or otherwise—must allege that she disclosed or objected to activities, policies, or practices falling outside the scope of her job responsibilities, which she reasonably believes were illegal or against public policy.  Stay tuned for the Supreme Court’s decision on this significant matter.

© 2022 Proskauer Rose LLP. National Law Review, Volume IV, Number 128
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About this Author

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney
Associate

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.

973-274-3272
Nicholas Tamburri, Labor Attorney, Proskauer Rose Law Firm
Associate

Nicholas Tamburri is an Associate in the Labor & Employment Department, resident in the Newark office.

973.274.6066
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