If an employee speaks out about something that falls within his job responsibilities to report, can he still be a whistleblower under the Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-1, et seq.? A trio of appellate decisions suggests the answer to this question is no.
The issue first appeared in Massarano v. N.J. Transit, 400 N.J. Super. 474 (App. Div. 2008), which has been construed by two unpublished appellate decisions to hold that an employee cannot be a whistleblower if it is part of her job to report activity she considers to be against public policy or illegal. However, those cases interpreted Massarano too broadly and risk leaving employers with the impression that by simply making it part of every employee’s job description that they must report an activity that is illegal or against public policy, an employer may except its employees from CEPA’s protections.
Massarano Decision
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