The Conscientious Chiropractor’s Case

The New Jersey Supreme Court directed the limitations of the class of CEPA- protected persons four times within in 2005-07 (New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq)., most recently in a pair of July 25, 2007 decisions, both authored by Justice Levecchia: D’Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110 and Stomel v. City of Camden, 192 N.J. 137. The 2005 decision in Yurick v. State, 184 N.J. 70 (2005) (see analysis in Feldman, infra, 187 N.J. at 241) and the 2006 decision in Feldman v. Hunterdon Radiological Associates, 187 N.J. 228 drew back these limitations in the case of a County Prosecutor and a Shareholder/Director of a medical practice because they were not “vulnerable” to their employers. They were not easily subject to a mere discharge and replacement.

By the terms of their employment contracts or by the authority inherent in their managerial positions they already possessed the means to correct unlawful or unethical practices without the necessity of whistleblowing or CEPA protection. In the same vein, a local tax assessor was held outside the class of CEPA protected persons in 1999 because the position had statutory tenure. Casamasino v. Jersey City, 304 N.J. Super. 226 (App. Div. 1997), rev’d on other grounds 158 N.J. 333 (1999) (see Feldman, 187 N.J. at 240), Justice LeVecchia put the brake lights on that trend. D’Annuzio held that a part-time Medical Director performing PIP review for Prudential was entitled to CEPA protection.

Furthermore, Stomel held that a part-time Municipal Public Defender operating out his own private law office, was also entitled to CEPA protection. Both were denominated as “independent contractors” in their employment contracts and both were paid on a 1099 basis. The specific issue in D’Annuzio and Stomel was whether the plaintiffs, although “independent contractors”, should nonetheless be classified as “employees” entitled to protection from CEPA retaliation under N.J.S.A. 34:19-3. CEPA defines an “employee” as “any individual who performs services for wages or other remuneration.” N.J.S.A. 34:19-2(b). The usual disputes over text-based vs. legislative policy based statutory interpretation were argued.

Historically, state and federal laws did not interfere with an employer’s right to discharge at-will employees. R. Alito, New Jersey Employment Law (2d Ed. 1999). In 1980 the New Jersey Supreme Court developed a case-law based cause of action against discharge in violation of public policy in Pierce v. Ortho Pharmaceutical Corp, 84 N.J. 58, 72 (1980), based upon a medical doctor/employee’s opposition to the use of saccharin in pharmaceuticals (public health issue).

The concept gained such public acceptance that the Legislature enacted CEPA 1984. The courts soon discerned an expansive legislative intention. NJ CEPA offers one of the broadest employee whistler-blower statutes in the country. Alito, New Jersey Employment Law, § 2-8 (p. 38) (NJLJ Books Supp. 2005-06). “The Legislature enacted CEPA to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431(1994)” Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003).

The statute is remedial and should be construed broadly. 177 N.J. at 462-64. “The Legislature intended CEPA to “encourage, not thwart, legitimate employee complaints.” 177 N. J. at 464, quoting Estate of Roach v. T.R.W., Inc., 164 N.J. 598, 610 (2000); accord Maimone v. City of Atlantic City, 188 N.J. 221, 230 (2006). 2011 Update: D’Annuzio was cited in State v. Ciancaglini, 204 N.J. 597, 605-06 (2011): When ascertaining the meaning of a statute, the central focus is the Legislature’s intent, and, generally, the best indicator of that intent is the statutory language.” The first step “is to look at the plain language of the statute.” If “the language of a statute is clear on its face, ‘the sole function of the courts is to enforce it according to its terms.’” D’Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110, 119-20 (2007). However, “[i]f the plain language of a statute is ambiguous or open to more than one plausible meaning, we may consider extrinsic evidence including legislative history and committee reports.

This article is for informational purposes only and does not constitute legal advice. For your specific situation, consult an attorney licensed in your jurisdiction.

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Pharmaceutical Attorney