Photo of Lucas Markowitz

Lucas A. Markowitz is an Associate in the Labor & Employment Department, resident in the Newark office.

On September 4, 2013, the New Jersey Appellate Division in Lippman v. Ethicon, Inc., Docket No. L–9025–06, 2013 WL 4726834 (App. Div. September 04, 2013), reversed a ruling by the Superior Court, Law Division granting summary judgment to the defendant employers and dismissing plaintiff’s claim under New Jersey’s Conscientious Employee Protection Act (CEPA) on the grounds that the plaintiff had “failed to show that he performed a whistle-blowing activity” where plaintiff’s job responsibilities included alerting his employer to potential safety issues related to the defendants’ drugs and products.  In the Appellate Division’s view, an employee’s job title or job responsibilities should not be considered “outcome determinative”  when deciding whether a plaintiff has made out a cognizable claim under New Jersey’s Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –8.

In January 2013, after over 30 FRSA complaints were lodged by BNSF Railway Company (BNSF) employees, OSHA and BNSF reached an agreement (Accord), where BNSF agreed to modify certain policies and practices alleged to interfere with employees’ rights under the whistleblowing provisions of the Federal Railroad Safety Act (FRSA). BNSF also extended settlement offers to 36 employees who alleged retaliation.

The gap between how federal courts and the Administrative Review Board (ARB) define protected activity under Section 806 of SOX widened further this month when the U.S. District Court for the Southern District of New York granted a defendant-employer’s Rule 12(b)(6) motion to dismiss.  Nielsen v. AECOM Tech. Corp., No. 12-cv-5163, 2012 WL 6200613 (S.D.N.Y. Dec. 11, 2012) (the decision can be accessed here).  This is a win for employers in a broad sense because the court required the complained-of fraudulent conduct to “definitively and specifically” relate to one of the laws exhaustively enumerated in Section 806, and it also used a “materiality” standard with respect to alleged shareholder fraud.