Five years ago, in Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010), the New Jersey Supreme Court adopted a balancing test for trial courts to use to determine if the unauthorized taking of confidential company documents by an employee constituted protected activity in support of the employee’s claim under the Law against Discrimination. Now, the Supreme Court has ruled that the Quinlan decision does not preclude criminal charges from being brought against an employee who steals confidential documents from her employer in support of a whistleblower lawsuit. On June 23, 2015, in a 6-1 ruling, the New Jersey Supreme Court decided State v. Saavedra, and upheld the denial of defendant Ivonne Saavedra’s motion to dismiss the indictment against her for official misconduct and theft by unlawful taking of movable property. The high court found that the State presented a prima facie showing to the grand jury with regard to the two charges, that the State did not withhold exculpatory information from the grand jury regarding defendant’s intent to use the stolen documents in her civil lawsuit, and – most importantly for employers – that the indictment does not violate due process standards or public policy by conflicting with Quinlan.
In June 2014, the New Jersey Supreme Court, in Hitesman v. Bridgeway, Inc., affirmed the decision of a lower appellate court dismissing a claim brought by a healthcare worker under the New Jersey whistleblower law, the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA). The decision is significant because the Supreme Court clarified the role of a trial court on the issue of whether a plaintiff has sufficiently identified a rule of law or a public policy that provides the necessary foundation for a CEPA claim.
NY Court of Appeals Gives Guidance on What Whistleblowers Need to Allege Under New York’s Whistleblower Law to Maintain Claim
On May 13, 2014, in Webb-Weber v. Community Action for Human Services, Inc., the New York Court of Appeals unanimously held that an employee need not identify the specific “law, rule or regulation” allegedly violated by his or her employer in a complaint for whistleblower retaliation under New York Labor Law Section 740 (2) in order to maintain a viable cause of action.
Is This Thing On? NJ Appellate Division Bars Employees’ Attempt to Use Secret Audio Recording In Support of CEPA and LAD Claims
Employees sometimes engage in questionable conduct to gather evidence to strengthen their claims of employment discrimination and retaliation. In Quinlan v. Curtiss-Wright Corporation and State of New Jersey v. Saavedra, employees misappropriated confidential employer documents to support their claims. More recently, in Stark v. South Jersey Transportation Authority, two employees surreptitiously voice-recorded a workplace conversation to support their claims under the New Jersey Law Against Discrimination (“LAD”). The Appellate Division, however, pressed the “STOP” button on the Stark plaintiffs’ efforts to utilize that recording as evidence, noting that recording violated the New Jersey Wiretap Act and failed to satisfy the seven-part balancing test established by the New Jersey Supreme Court in Quinlan for determining whether that violation nevertheless constituted “protected activity” under the New Jersey Law Against Discrimination (“LAD”).
The New Jersey Supreme Court recently decided to review a recent decision by the Appellate Division which threatens to expand the protections of the Conscientious Employee Protection Act (“CEPA”) to those employees whose job duties and responsibilities expressly require them to report to their employer potential or actual violations of law or public policy. The issue to be decided by the Supreme Court in Lippman v. Ethicon will be whether employees who are responsible for monitoring and reporting on employer compliance with relevant laws and regulations — so-called “watchdog” employees — seek whistleblower protection under CEPA, and, if so, under what circumstances?
Supreme Court Rules that Employees of Private Contractors Can Qualify as Whistleblowers Under Sarbanes-Oxley
On March 4, 2014, the U.S. Supreme Court issued its much anticipated decision in Lawson v. FMR LLC, resolving a dispute over the scope of the whistleblower provision of the Sarbanes-Oxley Act, 15 U.S.C. § 7201, et seq. (“SOX”). Private contractors and subcontractors of public companies should give their attention to this decision. Although SOX is generally thought of as a statute that regulates public companies and their employees, the Lawson decision extends SOX’s whistleblower provisions to cover private companies and their employees as well.
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination (“LAD”) and the Conscientious Employee Protection Act (“CEPA”), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have “reasonably believed” that the complained-of activity was fraudulent. Finally, addressing the plaintiff’s emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency.
Introduction – In a case of particular interest to New Jersey employers, the New Jersey Supreme Court has been asked to review an appellate ruling that an employee who reported violations of law to her superiors was not a “whistle-blower” because her reporting was required as part of her job duties. A decision by the Supreme Court will have a substantial impact on the scope of New Jersey’s whistle-blower statute, the Conscientious Employee Protection Act (“CEPA”) . Factual Background – In White v. Starbucks, plaintiff Kari White was employed as a district manager in Starbucks’ Upper Mid-Atlantic Region, where she was responsible for the overall management of six Starbucks locations including some in New Jersey. According to the job description for plaintiff’s position, she was responsible for, among other things, “ensuring that employees adhere to legal and operational compliance requirements.” Prior to formally assuming her management role, plaintiff participated in a six-week training period, where she received instruction in retail management and compliance with public health laws. She also received and reviewed a manual titled “Starbucks Food Safety, Store Cleanliness and Store Condition Standards.”
In our June 15, 2011 post, we reported on Donelson v. DuPont Chambers Works, a case in which two employees alleged they were retaliated against after they raised safety concerns about the employer’s manufacture of a dangerous chemical. The jury rendered a verdict in favor of one employee (Seddon) and against the other (Donelson). On appeal, the New Jersey Supreme Court held that the employer was liable under New Jersey’s Conscientious Employee Protection Act (“CEPA”) for the economic losses of Seddon, who was unable to continue working because of his mental injuries caused by the employer’s retaliatory actions. The Court reversed the decision of the Appellate Division that Seddon could not recover his economic losses because he had not been discharged or constructively discharged from his job. The Supreme Court remanded the case to the Appellate Division to decide the issues of punitive damages and attorneys’ fees.
“The Whistleblower Improvement Act of 2011,” a new bill which would amend the whistleblower program under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), was introduced by Representative Michael Grimm (R-NY) on July 11, 2011. The new bill addresses the concern that the whistleblower program of the Dodd-Frank Act, as it currently stands, will undermine internal compliance programs as there is no requirement in the statute that employees first report potential securities violations to the employer before going to the U.S. Securities and Exchange Commission (“SEC” or “Commission”). With limited exceptions, the proposed legislation would require employees to first report any misconduct through the employer’s internal reporting system before going to the Commission. As we previously reported, the Final Rules implementing the Dodd-Frank Act whistleblower program became effective on August 12, 2011.