A Capehart Scatchard Blog

Is Your Employee Really a Whistleblower?

By on September 26, 2017 in Employee Rights with 0 Comments

By now, most employers are familiar with New Jersey’s Conscientious Employee Protection Act (CEPA) found at N.J.S.A. 34:19-1 which generally protects employees engaged in “whistleblowing activities” from adverse employment actions such as termination or demotion. However, not every complaint or concern about an employer’s conduct rises to the level of whistleblowing under CEPA.  As a result, the looming threshold question in cases brought under CEPA is whether the so-called “whistleblower” reasonably believed that the employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy.

On September 26, 2017, New Jersey’s Appellate Division (in an unpublished yet informative decision rendered by Judges Yannotti and Carroll) addressed this issue in Jareer Abu-Ali v. Pinnacle Foods Group, LLC., No. A-1895-15T2 (App. Div. September 26, 2017).

The Basic Facts

Abu-Ali was the Director of Product Development for Pinnacle Foods, owner of several food brands including Vlasic Pickles and Log Cabin syrup. Over a period of time, Abu-Ali raised concerns with his supervisors about certain practices involving the company’s products, most of which he believed were violating Pinnacle’s internal standards and protocols about product ingredients and labeling. He also complained about Pinnacle’s alleged fraudulent financial projections.

After Abu-Ali engaged in conduct deemed inappropriate towards another employee, Pinnacle decided to reclassify his position as an “independent contributor” at the same level of compensation and benefits. Abu-Ali refused the reclassification and resigned when he was advised that if he refused the reclassification, he could either resign or be terminated. Abu-Ali sued, claiming that Pinnacle violated CEPA by retaliating action against him for his whistleblowing activities.

What Did the Courts Do?

After discovery was completed, the trial court granted summary judgment in favor of Pinnacle (i.e., judgment as a matter of law since there were no material facts in dispute). On September 26, 2017, Appellate Judges Yannotti and Carroll agreed with the trial court and “threw the case out” as a matter of law.

How Could This Happen When Abu-Ali Expressed Legitimate and Valid Concerns about Pinnacle’s Practices?

Most important is that the trial court and Appellate Panel agreed that while Abu-Ali may have had a reasonable belief that Pinnacle violated food and drug laws by failing to modify nutritional levels after changing the ingredients in the jars, that he failed to present sufficient evidence to show that he had a reasonable belief that Pinnacle was violating some law, rule, regulation, or clear mandate of public policy with regard to all of the other practices he complained about.

That is, in asserting virtually every complaint he made about Pinnacle’s practices, Abu-Ali simply raised “concerns” related to possible deviation from Pinnacle’s internal standards and specifications while at the same time failing to cite any rule, regulation or standard that Pinnacle allegedly violated. In rejecting his claims that he need not identify specific standards that he reasonably believed were violated, the Court soundly reaffirmed that “a plaintiff must first find and enunciate the specific terms of a statute or regulation, or the clear expression of public policy, which would be violated if the facts as alleged are true.” (Quoting N.J. Supreme Court in Dzwonar v. McDevitt).

Did Abu-Ali Really Suffer Adverse Employment Action?

This issue was “strike two” for Abu-Ali, who claimed his reclassification constituted adverse employment action. “Not so fast,” suggested the Courts, who opined that not every employment action “that makes an employee unhappy” is an adverse employment action under CEPA. Here, Abu-Ali’s grade level, compensation, and work responsibilities remained unchanged and, to make matters worse, he made clear that he would never accept the reclassified position which precluded him from establishing that he had been subject to either a constructive discharge or an adverse employment action.

So What’s the Take-a-Way Here?

Each potential CEPA claim “stands on its own.”  When an employee complains or expresses concerns about an employer’s practices, the employer should be mindful that such complaints may or may not rise to the level of a “reasonable belief” of a violation under CEPA. The recommended course of action is to consult your labor and employment counsel as soon as possible to attempt to prevent a future CEPA claim.

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Carmen Saginario Jr., Esq

About the Author

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice on employment litigation and counseling. He regularly counsels clients on litigation avoidance, personnel policies and procedures including those associated with the Americans with Disabilities Act, Family and Medical Leave Act and Fair Labor Standards Act, employment discipline, layoffs and other terminations. Mr. Saginario directs and participates in internal investigations involving claims of harassment, policy violations, ethics and other employment issues. He also appears on behalf of private and public sector clients before the judiciary as well as State and Federal administrative agencies (EEOC, N.J. Division on Civil Rights, etc.). Mr. Saginario is also experienced in representing clients before arbitrators and mediators. He has negotiated numerous public collective negotiations agreements (e.g., law enforcement, public works, etc.). Mr. Saginario has been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent).

Mr. Saginario also regularly represents clients in administrative and complex civil litigation matters and also supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs.

Mr. Saginario serves as counsel for governmental and other entities (including counties, municipalities, school boards, and fire districts) and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues.

Mr. Saginario served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean, and currently serves as Vice Chair and Director of Administration for the Cinnaminson Sewerage Authority.

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