A recent appellate court ruling related to whistleblowers is one of the most important whistleblower cases to be heard in the last decade, according to John Sarno, president of the Employers Association of New Jersey.
The New Jersey Superior Court appellate division, in Newark, ruled Friday that a trial court was correct in dismissing a whistleblower suit filed against Starbucks. Kari White, a former district manager for Starbucks Corp., sued her employer under New Jersey’s Conscientious Employee Protection Act — commonly called the whistleblower law — in a case dismissed by Superior Court Judge Michael J. Nelson in Essex County in 2009. Nelson ruled White could not bring the case because “the issues on which she bases her claim fall within the sphere of her job-related duties, thus disqualifying her as a whistleblower as a matter of law.” Appellate arguments were heard in January 2011, but a decision was not announced until Friday, when the court upheld Nelson’s ruling.
“The suit alleged she was fired when she disclosed health and safety violations and employee misconduct,” said Sarno, who testified in the case as a friend of the court, in favor of Nelson’s ruling. “It was part of her job to correct those problems, and when she did not correct those problems, she was fired … in effect, the issue was, can you blow the whistle on yourself?”
The recent appellate ruling is important to many employers because there are “many people employed in organizations who have similar responsibilities” to White, and they are paid to report and correct violations.
“If employees are able to cloak themselves with whistleblower protection, then the employer would have to excuse poor job performance,” Sarno said.
Ross Begelman, managing partner at Begelman, Orlow and Melletz, in Cherry Hill, specializes in CEPA and whistleblower litigation representing employees.
Begelman was not involved in the White case, but said whistleblower cases are often a result of the employer “blaming the messenger then, worse, retaliating against the messenger.”
“Employers quite often, when they don’t want people to do their job, especially compliance officers, will blame the messenger,” Begelmen said. “But the employer doesn’t give the authority or the resources to get the job done, and sometimes employees’ powers are limited.”
While adding that every case is decided on a basis of the specific, individual facts, Begelman said he’s “hopeful employers are not going to use this as a further tool to retaliate against employees that just trying to be conscientious.”
Begelman said he’s represented several employees filing whistleblower suits whose jobs required them to report or correct violations, and the federal whistleblower laws under the False Claims Act protect employees when reporting duties are part of their job responsibilities, as long as they are not the person who originated the scheme.