This document summarizes employment law topics related to whistleblowing and retaliation. It discusses when employee reporting of issues like safety violations, theft, or discrimination can be considered protected activity under whistleblower laws. For example, employees tasked with monitoring health and safety codes who report violations as part of their job may be considered whistleblowers. However, merely disagreeing with company procedures is not protected. The document also examines factors like an employee's motivation and whether they had a reasonable belief a law was being violated.

1. John J. Sarno, Esq.
Employers Association of NJ
www.eanj.org
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2. Managers owe a duty of loyalty to the
employer to
1) carry out its policies faithfully and
2) to advance the employer’s interest.
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3. HR should assure “fair and equitable
treatment of all employees” while
maintaining loyal to the employer.”
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4. HR must “adhere to the highest standards of
ethical behavior” and “comply with the law”
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5. HR must “safeguard restricted and
confidential information” and “maintain a
high level of trust” and avoid conflicts of
interest.
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6. Employer cannot discriminate or retaliate
against an employee because the employee
 Opposes a discriminatory practice, or
 Participates in a formal EEOC investigation,
proceeding or hearing
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7. Law protects supervisor (and any employee)
who reports harassment, even if they are not
the target.
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8. Title VII protects an employee who answers
questions and reveals additional harassment
(“me too”) during an employer’s internal
investigation.
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9. Is your report to management a form of
“opposing” discrimination/harassment?
OR
Are you “participating” when conducting an
investigation?
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10. Brush, an HR manager conducted an
investigation into sex harassment. During the
interview, the victim claimed that she was
raped by her manager but did not want to
report it to police. The manager was fired
but Brush pushed to have management
report the rape. Thereafter she was fired.
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11. “A management employee that in the course
of her normal job performance, disagrees
with or opposes the actions of her employer
does not engage in ‘protected activity’”
Disagreement with internal procedures is not
opposing discriminatory practices.
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12. Participation in an internal investigation
unrelated to a formal EEOC charge is not
protected activity.
Participation in an investigation after the
filing of a formal EEOC charge may be
different.
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13.  Whistleblowing activity, i.e.: disclosure or
objection, or refusal
 Reasonable belief that employer violated a
law, rule, regulation, was fraudulent or
criminal, or violated a “clear mandate of
public policy”,
 Adverse employment action
 Causation
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14. Employee should have some objective
rationale for her belief that employer’s
conduct violates law, is fraudulent or is
incompatible with a clear mandate of
public policy. Generally, an employee
should be able to articulate a law,
regulation or code.
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15. “Retaliatory Action” means the discharge,
suspension or demotion of an employee, or
other adverse employment action taken
against an employee in terms and
conditions of employment.
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16.  Argued before Appellate Division on January
26,2011
 Appellate Division decision on December 9,
2011
 N.J. Supreme Court denies certification on
April 9, 2012
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17. Is an employee who reports or discloses a
violation of health or safety code that is part
of their job to report and/or correct
engaging in protected whistlblower activity
under the N.J. Conscientious Employee
Protection Act (CEPA)?
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18.  Kari White was hired in July, 2006 as a
District Manager at Starbucks.
 Several weeks of training in food safety,
store cleanliness and theft prevention.
 6 store managers reported to her.
 Primary functions are monitoring store
conditions, ensuring customer satisfaction
and product quality.
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19.  Complaints from store managers
 Interpersonal conflict
 Lack of focus
 Failure to prioritize
 Inappropriate and profane language
 Bullying
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20.  White reports stolen merchandise, lack of
handicap accessibility at some stores and
poor refrigeration
 White does not improve her interpersonal
skills and organizational failures
 Termination in March, 2007
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21. White files wrongful termination suit alleging
violations of CEPA when Starbucks fired her in
retaliation for reporting stolen merchandise,
lack of handicap accessibility and poor
refrigeration!
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22. 1) A rule, law or regulation
2) Fraud, deception or crime
3) Public health, safety and welfare
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23. Employee theft
Handicap accessibility
Poor Refrigeration
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24. White’s CEPA suit was dismissed by the trial court
and was appealed. Appellate court affirms trial
court’s dismissal.
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25. Security supervisor reported that schematics
and blueprints for tunnels, bridges and gas
lines had been left in recycling bins on a
loading dock.
Five months later supervisor’s employment
ended.
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26. Security officer was not a whistleblower
when she reported security violations. She
“was merely doing her job” as a security
officer when she reported the violations.
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27. “Watchdog” employees can be
whistleblowers when performing in the
course of their job duties
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28. “Watchdog” employee is an employee, by
virtue of doing their job is in the best
position to:
1) Know the relevant standard of care, and
2) Know when the employer is violating that
standard of care
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29. Lippman, a doctor, is in charge of product
safety, and gives opinions and
recommendations and often challenges the
marketing department. Meetings became
heated as Lippman seeks to delay drug
launches on safety grounds. Some
recommendations are followed, some are
rejected.
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30. Lippman is fired for secretly dating a
subordinate but court finds he can allege
termination for alerting company of drug
safety problems.
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www.eanj.org/content/eanj-courts

32.  The Facts
 Employed since 1980 as benefits analyst,
promoted to executive director of HR in 1999.
 Signs confidentiality agreement
 In 2000 Ken Lewis is hired in HR and promoted
to corporate director of HR in 2003
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33. Objections
Refusals
Disclosures
Resisting
Providing Information
Pursuing a Claim
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34. Factors:
Relevance to case
 Company policy
 Purpose of copying and disclosure
 To whom?
 Would documents be destroyed?
 Could documents be obtained in another way?
Whether documents were available in ordinary
course of business
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35. Court finds that violating confidentiality
policy could be “protected activity”
Employee could be fired
Could be retaliation
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36. Employees can be fired for disloyalty
Some acts at disloyalty are protected
activity
Factors:
Motivation
How disruptive
Does employee have a belief that
the law is being violated?
But: Extremely high-risk if protected activity
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37. Thank You
Questions?
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