Whistleblower Protections in New Jersey


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Whistleblower protection laws exist on the federal and state level to protect workers who report misconduct from retaliation by their employers.

The U.S. Court of Appeals for the Third Circuit recently emphasized the broad scope of New Jersey whistleblower protections when it overturned the trial court’s decision in Trzaska v. L’Oréal.

The trial court dismissed the employee’s case, holding that Trzaska failed to state an actionable claim. The case concerned the alleged breach of the New Jersey rules of professional conduct
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and certain ethics rules of the U.S. Patent and Trademark Office (collectively, the “RPCs”). Trzaska, a patent attorney, alleged that L’Oréal required him and his team to file a specific number of patents during the calendar year, regardless of whether they believed there was a legal basis for those claims. The company allegedly imposed this quota as a means to achieve the global goal of filing 500 patent applications in a year, as set forth by its parent corporation.

Trzaska complained to management regarding what he believed were violations of the RPCs and was fired two months later. Trzaska then filed a lawsuit against his former employer, alleging retaliatory discharge – a practice prohibited by the New Jersey Conscientious Employee Protection Act (CEPA). To establish a CEPA claim, a plaintiff must show that he reasonably believed that his employer’s conduct violated a law, rule, regulation or public policy and that the adverse employment action taken against him was causally connected to his whistleblowing activities.

Court Questions Whistleblower’s Claims

The trial court dismissed Trzaska’s claim, holding that the RPCs did not govern L’Oréal’s business practices and that L’Oréal was allowed to establish such company quotas as they did. The trial court also stated that Trzaska was not directly ordered to submit defective or deficient patent applications. Trzaska’s allegations of implicit instruction to disregard the RPCs was not enough; the trial court held that he would have to show more than mere pressure to meet a quota to establish an actionable CEPA claim.

Trzaska appealed and the Third Circuit overturned the trial court’s ruling, finding that Trzaska’s allegations against his former employer are “more than skin deep”. The Third Circuit found that regardless of whether Trzaska had in fact been instructed to disregard the RPC’s (which would be determined later in the litigation process), Trzaska had satisfied the elements of a CEPA claim and his claim should not have been dismissed. Stating that the patent process is tied to the public interest, the appellate court held that employers violate public policy when they instruct their in-house patent attorneys to disregard the RPCs or other rules of professional conduct.

After the case was remanded to the trial court, L’Oréal filed for an en banc rehearing. With only three circuit judges voting in favor of the rehearing, the Third Circuit rejected L’Oréal’s request. This decision re-emphasizes that New Jersey employees can, and should, engage in whistleblowing activities without fear of retaliatory personnel actions.

ABOUT THE AUTHOR: Richard D. McOmber
Richard D. McOmber was admitted to the New Jersey and Federal District Court Bars and then served as a Captain in the United States Army, Judge Advocate General Corps, for three years in Washington, D.C. Upon his discharge from the Army, he joined the law firm of Giordano, Giordano & Halleran, later Giordano, Halleran & McOmber. Thereafter, he left that firm to start a new firm with his wife, Adrienne H. McOmber. His primary practice areas include business law, employment law, estate planning, land use, real estate, sexual harassment and hostile work environment, wills, and trusts.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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