The "Job Duty Exception": When Blowing the Whistle Is Not Whistleblowing
Author: Marta Moakley, Brightmine Legal Editor
A federal district court in New Jersey rejected a union employee's claim that he was protected under New Jersey's Conscientious Employee Protection Act (CEPA) for reporting illegal activities and participating in financial audits. The court ruled that employees who make disclosures as part of their job duties are not protected under New Jersey's whistleblower statute. See Gianfrancesco v. Laborers Int'l Union of N. Am. Local 594, +2013 U.S. Dist. LEXIS 8376 (D.N.J. 2013).
The employee was fired from his position with the Laborer's International Union of North America (LIUNA) after participating in audits in his capacities as the secretary treasurer of a union district council and the president of LIUNA's Local 594. While a labor field representative, the employee also reported the presence of nonunion workers at job sites. The employee argued that he was terminated in retaliation for his activities, which were protected as whistleblowing under CEPA. The union contended that the employee was terminated for performance and business necessity reasons, and that any reports made were required as part of the employee's position. The court ruled that CEPA does not apply because the employee's activities were part of his job description.
Since 2008, courts have applied the "job duty exception" in several other New Jersey whistleblower cases. In addition, the distinction between matters of public concern and private employment duties has been applied in retaliation cases brought under other federal and state laws, such as cases concerning First Amendment retaliation. Therefore, courts distinguish statements that are made out of a concern for public welfare or safety from those that are simply a part of an individual's job responsibilities.
Employers should take note of the district court's reasoning in the Gianfrancesco case. Employers that implement a policy requiring employees to disclose violations internally may successfully argue that the disclosures are part of employees' job duties, and therefore not entitled to state whistleblower protections. Because recent decisions show courts to be more receptive to this whistleblower exception, an employer may wish to include this policy as part of its overall compliance strategy.
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