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Bar News - April 20, 2016

Labor & Employment Law: Can Watchdog Employees Blow the Whistle?


“Watchdog” employees have jobs that require them to speak out when an employer may be putting the public in danger or violating the law. Courts are increasingly giving them whistleblower protection, despite defense pleas that they can’t blow the whistle if they are paid to do so.

In 2012, NH Superior Court Judge Larry Smukler (ret.), in the case of Ludtke v. Insurance Department, dismissed a whistleblower count brought by Ludtke, who, as a lawyer working at the State Insurance Department, pushed back against a sweetheart no-bid contract her employer was trying to slide through the NH Executive Council. Smukler said that because she was just “doing her job,” she could not qualify as a whistleblower.

Since then, the First Circuit Court of Appeals, under Maine’s Whistleblower Protection Act, held this year that a “job duties exception” did not prevent Torrey Harrison from suing the group home for which she worked (Harrison v. Granite Bay Care Inc.).

Harrison is a licensed clinical social worker who served as Granite Bay’s training director and a part of senior management. She became concerned that a client, who was also a part-time employee, was not getting paid in a timely manner. She complained about the illegal practice to her supervisor who did nothing to correct the situation.

After a second attempt to have her supervisor rectify the situation, Harrison went to Maine’s Health and Human Services Department to file a complaint. After that occurred, she was shunned by her supervisor who spoke of her in a negative manner. Within a few months, Harrison was terminated for “creating disharmony in the workplace.”

The trial court said that because part of Harrison’s job was to report violations to DHHS as a mandated reporter, she was just doing her job and thus, could not be a whistleblower under Maine law. The Maine statute tracks almost verbatim with New Hampshire’s Whistleblowers’ Protection Act, RSA 275-E:2. Under Maine’s law, a plaintiff must show that 1) she engaged in activity protected by the statute; 2) she suffered an adverse employment action; and 3) there was a causal link between the protected activity and the adverse employment action.

The First Circuit looked at the temporal brevity between reporting and termination as well as the employee’s motivation in making the report, finding: “Although a particular employee’s job duties may be relevant in discerning his or her actual motivation in reporting information, those duties are not dispositive of the question. In other words, if an employee is just doing his or her job by passing information to others in the organization, he or she may not have intended to engage in protected whistleblowing activity by bringing to light an unlawful (or potentially unlawful) activity or occurrence.” The lower court’s opinion was reversed and the case remanded.

Last year, in a very thorough analysis of the New Jersey whistleblower law’s text, its high court correctly found no exception for claims by what it termed “watchdog” employees.

Dr. Joel Lippman was vice president of medical affairs for Ethicon, a medical device arm of Johnson & Johnson in New Jersey. He served on a quality board to assess the health risks of Ethicon’s medical and surgical products. Board members were expected to express their points of view on product safety based on their knowledge and expertise. Under New Jersey law, the employee must object to or refuse to participate in any activity, policy or practice of the employer to receive whistleblower protection. Because Lippman’s dangerousness objections to a product called DFK-24 were part of his job duties, the trial court dismissed his suit for wrongful termination and whistleblower protection.

The New Jersey Supreme Court reversed the trial court’s decision and pointed out that the statute defined an employee as “any individual who performs services” for an employer. Observed the Court: “There are no exceptions to that generic definition contained in the Act.” (Lippman v. Ethicon, Inc.).

The Court also pointed out that by its plain language, the statute does not define protected employees as only those with certain job functions. Furthermore, because labor laws are remedial legislation, they should be liberally construed. The Court thus found no statutory basis to exclude watchdog employees from protection.

The defendant then moved to its argument that the phrases “objects to” or “refuses to participate” must relate to acts outside of the employee’s prescribed work duties. The Court turned to the dictionary to conclude that “object” means to hold or present an opposing view or to express disapproval. Once again, because the act of objecting is not tied by statute to the job duties of the employee, the Court concluded in favor of Lippman because “courts should not rewrite plainly worded statutes.”

Chuck Douglas

Chuck Douglas is a former NH Superior Court and NH Supreme Court justice. He is the author of the New Hampshire Evidence Manual and the New Hampshire Family Law books.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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