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NEW JERSEY SUPREME COURT ADDRESSES CRIMINAL LIABILITY OF WHISTLEBLOWERS

When the Supreme Court of New Jersey held in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010) that an employee’s unauthorized taking of an employer’s confidential documents can constitute protected activity when the documents are used in support of a discrimination claim. it left several vexing questions unanswered. In particular, the Court did not explain how it would reconcile this controversial decision with instances where an employee’s taking of documents constituted a violation of law.

Disagreement Between State Senate and Assembly Stalls Paid Sick Leave Bill

On June 22, 2015, the New Jersey Senate Labor Committee approved S785, a bill that would provide mandatory paid sick leave to all New Jersey employees. The bill is similar to A2354, passed by the Assembly Budget Committee, in that it would require employers to provide either 40 or 72 hours of paid sick leave to employees, depending on the size of the employer. The proposed laws would allow employees to accrue such leave at a rate of 1 hour for every 30 hours worked, and permit employees to use the leave for their own medical illness, preventive doctor appointments, or illness or appointments for family members (among other reasons).

Update on Local Paid Sick Leave Ordinances

In the recently decided matter of New Jersey Business and Industry Association, et al v. City of Trenton (L-467-15, April 16, 2015), the court held that Trenton’s paid sick leave ordinance applies only to employers based in Trenton, and not to employers “whose employees have to come to Trenton for . . . more than 80 hours.” Counsel for the City of Paterson also appeared on the record in that matter and stated that the Paterson ordinance likewise should only apply to businesses located in Paterson.

New Jersey Division on Civil Rights Workplace Posting Update

The New Jersey Division on Civil Rights (DCR) quietly issued another round of updated mandatory posters (with a revision date of 5/8/2015), which are now available on its website.

New Jersey Supreme Court Rejects Heightened Standard For “Watchdog” Whistleblowers

In a decision that is likely to have far-reaching impact on employers, the New Jersey Supreme Court has rejected a heightened standard for “watchdog” employees, i.e. employees whose job duties include ensuring legal compliance, to prove whistleblower liability under the New Jersey Conscientious Employee Protection Act (CEPA). Lippman v. Ethicon, Inc., No. A-65/66-13 (July 15, 2015).

New Jersey Rejects Heightened Bar for Whistleblower Claims by ‘Watchdog’ Employees

In a unanimous decision, the New Jersey Supreme Court has refused to raise the bar for employees whose job entails ensuring legal compliance (“watchdog” employees) to bring whistleblower claims under the New Jersey Conscientious Employee Protection Act (CEPA). Lippman v. Ethicon, Inc., No. A-65/66-13 (July 15, 2015).

New Jersey's Conscientious "Everyone" Protection Act? State Supreme Court says "Yes"

Executive Summary: As we previously forecast and employers feared, New Jersey's Supreme Court has dramatically expanded the state's whistleblower law, the Conscientious Employee Protection Act or "CEPA." In doing so, the Court held that so-called "watchdog" employees—who monitor, advise, or report to upper management concerning corporate conduct—may invoke the whistleblower protections of CEPA based upon the same consulting, advice, and reporting performed as part of their normal job functions. In rejecting more than a dozen appellate and federal cases dating back nearly a decade, the Court's decision confirms that CEPA likely is the most far-reaching whistleblowing statute in the U.S.

Confidential Documents Potentially Safer From Employee Misappropriation Says New Jersey's Supreme Court

Executive Summary: On the heels of an appellate decision providing employees a virtual how-to manual to misuse and exploit confidential employer documents and safely provide them to a competitor, New Jersey's Supreme Court reversed course last week by suggesting that employees do not have competing rights to confidential employer documents in commercial or business disputes. State v. Saavedra (June 23, 2015), clarifies when a sweeping multi-part test should be used to determine when an employee may remove and retain confidential employer documents. That test should be limited to where the employee engages in self-help to further her prosecution of an affirmative claim against the employer brought under New Jersey's Law Against Discrimination ("LAD"). This ruling should minimize the impact of Spencer Sav. Bank SLA v. McGrover (App. Div. March 5, 2015), which now arguably misapplied the same multi-part analysis to find a departing employee did not breach his duty of loyalty to his former employer after he absconded with documents asserted to be confidential and proprietary. For a more detailed discussion of this decision, please see our June 25, 2015 Alert, Appellate Decision Teaches New Jersey Employees How To Remove Confidential Documents and Trade Secrets from Employers.

Quinlan Revisited: Employees Who Steal Personnel Records May Not Necessarily Be Fired, But At Least They May Be Prosecuted

Five years ago, in Quinlan v. Curtiss-Wright Corporation, the New Jersey Supreme Court ruled that a trusted employee's act of stealing and using her employer's confidential personnel documents in furtherance of her discrimination lawsuit constituted protected activity under the New Jersey Law Against Discrimination ("LAD").1 On June 23, 2015, the court revisited this highly controversial decision in State v. Saavedra, stating, to the surprise of many, that Quinlan "did not endorse self-help as an alternative to the legal process in employment discrimination litigation." Instead, the court held that Quinlan did not require the dismissal of the indictment of a Board of Education employee who unlawfully took confidential student documents to support her LAD suit against her employer and she could still be criminally prosecuted for her actions. The court held, however, that Quinlan could be a basis for a justification defense against such prosecution.

New Jersey Supreme Court Affirms Validity of Criminal Prosecution of Employee’s Theft of Employer’s Documents

A former school board employee who removed confidential documents to assist in her employment lawsuit filed against the school board may be criminally prosecuted, the New Jersey Supreme Court has ruled, affirming an Appellate Division decision. State v. Saavedra, No. A-68-13 (June 23, 2015). The Supreme Court’s decision could strengthen employers’ ability to protect their confidential documents, while forcing attorneys to seriously question the advisability of accepting and using documents from clients who may have improperly obtained them from their employers.