Whistleblowingand Retaliation

McMoran, O’Connor, Bramley & Burns, P.C. is a leader in whistleblowing law in New Jersey and New York.

In 2015, the attorneys at McMoran, O’Connor, Bramley & Burns, P.C. changed the landscape in whistleblower protection for employees in New Jersey in a landmark case against Johnson & Johnson, Inc. and its subsidiary. See Lippman v. Ethicon, Inc. and Johnson & Johnson, Inc., below. The firm successfully persuaded the New Jersey Supreme Court to unanimously rule that the New Jersey whistleblower law, the Conscientious Employee Protection Act (CEPA), provided protection to senior employees who refused to participate in or objected to conduct that they reasonably believed was unlawful or fraudulent.

Conscientious Employee Protection Act

The New Jersey Conscientious Employee Protection Act (CEPA) prohibits an employer from taking retaliatory action against an employee who discloses, objects to, or refuses to participate in any conduct that the employee reasonably believes to be illegal, fraudulent or in violation of public policy. Such retaliation can include firing, demotion, failure to promote or other adverse employment action.

This is one of the fastest growing areas of employment law. It has received significant national attention over the past decade as more and more employees are objecting to wrongful conduct in the workplace. McMoran, O’Connor, Bramley & Burns, P.C. is at the forefront in this developing area of law.

Lippman v. Ethicon, Inc. and Johnson & Johnson, Inc.

In July 2015, the New Jersey Supreme Court issued a long-anticipated decision in landmark case of Lippman v. Ethicon, Inc. & Johnson & Johnson, Inc., in which the Court held that employees who blow the whistle on conduct they believe is illegal in the course of performing their assigned job duties are protected by New Jersey’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et. seq. The plaintiff Dr. Joel Lippman was represented by McMoran, O’Connor, Bramley & Burns, P.C.

Dr. Lippman was employed as the Chief Medical Officer by defendant Ethicon, Inc., a wholly owned subsidiary of defendant Johnson & Johnson, Inc. Ethicon manufactures medical devices and has done more than $20 billion in sales every year since 2006. On numerous occasions during his employment with Ethicon, Dr. Lippman objected to the launch, marketing and/or continued sale of certain medical products that he believed were medically unsafe. After lodging his objections, Dr. Lippman received pushback from executives at Ethicon, who, for business reasons, wanted to continuing selling these unsafe medical products. Within weeks after Dr. Lippman demanded the immediate recall of a faulty life-sustaining device used in open-heart surgeries, Ethicon terminated his employment.

Dr. Lippman retained McMoran, O’Connor, Bramley & Burns, P.C. to pursue a wrongful discharge claim against Ethicon and Johnson & Johnson for unlawful retaliatory termination in violation of CEPA. Relying upon a New Jersey Appellate Division decision from 2008, the trial court dismissed Dr. Lippman’s lawsuit, concluding that since it was within Dr. Lippman’s job duties as Chief Medical Officer to lodge objections to unsafe medical devices, he was not protected by CEPA. At that time, a number of other New Jersey trial and appellate courts had dismissed lawsuits on similar grounds, concluding that if it was within the plaintiff-employee’s job duties to make objections, the plaintiff was not protected by CEPA. Under this troubling precedent, a nuclear power plant safety inspector would not be protected by CEPA if he lodged objections to the safety of the plant’s reactors, nor would an accountant who objected to her employer’s accounting fraud. However, if a janitor objected on these same issues, he would be protected.

Dr. Lippman appealed the dismissal of his lawsuit to the New Jersey Appellate Division. In a published opinion, the Appellate Division reversed the trial court’s dismissal, holding that employees like Dr. Lippman – who the court called “watchdog” employees – are indeed protected by CEPA.

Ethicon and Johnson & Johnson appealed the Appellate Division’s decision to the New Jersey Supreme Court. On July 15, 2015, in a unanimous decision, the New Jersey Supreme Court held that CEPA’s broad, remedial protections extend to an employee’s performance of his or her regular job duties. Thus, “watchdog” employees like Dr. Lippman are protected by CEPA from unlawful retaliation.

The New Jersey Supreme Court’s decision was a victory for all citizens of New Jersey in general, not just employees. “Watchdog” employees like Dr. Lippman are the employees who, by virtue of their job duties, are in the best position to protect the public and environment from employer wrongdoing. The conduct Dr. Lippman engaged in, which prevented countless patients from being exposed to unreasonable health risks, was exactly the type of protected activity the New Jersey Legislature intended to encourage when it enacted CEPA.

If you believe that you have been the victim of retaliation in the workplace, you should immediately contact the attorneys at McMoran, O’Connor & Bramley, P.C. for a consultation.