N.J. Supreme Court should protect workplace whistleblowers

N.J. Supreme Court should protect workplace whistleblowers

http://www.nj.com/opinion/index.ssf/2015/01/nj_supreme_court_should_prot...

Published in Star-Ledger (NJ), Jan. 8, 2015

By David Tykulsker

What happens if a nurse at a New Jersey hospital or nursing home observes a legal violation that endangers patient care, informs her supervisor, and is fired for doing so?

Or a nuclear engineer who spots a practice that could result in a Chernobyl-like disaster notifies her boss but the practice continues, so the engineer reports it to a government agency and is then demoted?

Or a factory inspector who, after telling his superiors of illegal conditions that could cause a chemical leak or explosion affecting nearby communities, is suspended for talking to the press?

Or an accountant discovers that her employer is embezzling money the firm needs to survive?

For these employees, and for many others in our state, being the eyes and ears to protect us from danger and wrongdoing by managers is a regular part of the job. The public rightfully relies on such workers to report and remedy any wrongdoing they witness.

For years, employees in situations like this have been protected by New Jersey’s whistleblower law.

Known as the Conscientious Employees Protection Act (CEPA), the statute makes it illegal to retaliate against employees who report violations of law or public policies.

This law is intended to protect the public by making it more likely that employees will report violations, knowing they are not risking their job. It also maintains a level playing field for responsible employers by increasing the chances that those who try to gain an advantage by cutting corners will be reported.

Now, however, the New Jersey Supreme Court is about to decide whether to maintain these protections or effectively repeal them by judicial fiat. Corporate interests, including the New Jersey Business and Industry Association and the New Jersey Employers Association, are asking the court to declare that workers would not be protected if reporting wrongdoing could be considered to be part of their job. Thus, employees whose job functions require they keep a sharp eye out for violations – that is, those most likely to observe illegal behavior that would harm the public – would have no protections.

This restriction on who can be considered a whistleblower appears nowhere in the law itself. But corporate interests are asking the State Supreme Court to invent a new loophole for them.

Court opinions are guides to how employment contracts will be devised going forward. If the N.J. Supreme Court removes whistleblower protection for anyone who is supposed to report violations as part of their regular job duties, irresponsible employers will simply require all employees to sign a form saying that they will report any violation they see, depriving nearly every employee of whistleblower protections. In fact, some New Jersey companies have recently imposed such obligations in their employees’ job descriptions.

This anti-whistleblower exception is bad news for the public. Consider Massarano vs. NJ Transit, in which a court approved the firing of a security operations manager for NJ Transit who reported security breaches that could endanger travelers. As she was “merely doing her job” by seeking to prevent the documents from being used to wreak havoc, the court held it perfectly legal for NJ Transit to fire her for embarrassing her boss. Similarly, White vs. Starbucks denied protection to a Starbucks manager forced to resign after reporting unsanitary conditions and violations of wheelchair access laws to supervisors because such reporting was part of the manager’s job.

In a friend of the court brief, lawyers for New Jersey’s chapter of the National Employment Lawyers Association, the Work Environment Council, and 26 environmental, community and labor organizations, representing more than half a million New Jerseyans, have asked the state Supreme Court to uphold the law.

The corporate assault on the public’s whistleblower protections is part of a broader attack by Wall Street and big corporations to undermine or repeal well-established safeguards for our safety and health, the environment, and financial security. Whether as employees, consumers, homeowners, small business owners, taxpayers or community residents, all of us have a stake in what the state Supreme Court decides.

David Tykulsker, Esq. is a Montclair attorney and general counsel of the New Jersey Work Environment Council (WEC), a coalition of labor, environmental and community organizations.