SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson, Inc. (A-65/66-13) (073324)

Argued January 20, 2015 -- Decided July 15, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers whether an employee, whose job duties entail knowing or securing 

compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate 

from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the 

Conscientous Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.

Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant 

Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his 

termination in May 2006. For the majority of his employment, plaintiff served as worldwide vice president of 

medical affairs and chief medical officer of Ethicon. He was responsible for safety, medical reviews, and medical 

writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the 

health risks posed by Ethicon’s products and provide medical input regarding any necessary corrective measures 

with respect to their products in the field. 

On numerous occasions, plaintiff objected to the proposed or continued sale and distribution of certain 

Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal 

and state laws and regulations. In some instances, plaintiff opined that a particular product should not go to market, 

should be recalled, or that further research was necessary. Although he received “push back” from executives and 

other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon 

ultimately followed many of his recommendations. In April 2006, plaintiff advocated the recall of a particular 

product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 

2006, Ethicon terminated plaintiff’s employment. 

Plaintiff filed a complaint alleging, in part, that his employment was terminated due to his whistleblowing 

activities, which he identified as his actions in reporting a number of products as dangerous and in violation of the 

federal Food, Drug and Cosmetic Act, and advising that defendants either recall the products or perform further 

research. Ethicon asserted that plaintiff was terminated as a result of an inappropriate relationship with someone 

who worked in a department under his authority. The trial court granted defendants’ summary judgment motion, 

dismissing plaintiff’s CEPA action. Relying on Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 

2008), the court concluded that, because plaintiff admitted it was his job to bring forth issues regarding drug and 

product safety, he failed to show that he performed a whistleblowing activity protected by CEPA. 

Plaintiff appealed, and the Appellate Division reversed in a published decision. Lippman v. Ethicon, Inc., 

432 N.J. Super. 378 (App. Div. 2013). The panel rejected the trial court’s interpretation of protected whistleblowing 

conduct under N.J.S.A. 34:19-3(c), finding that it was inconsistent with the broad remedial purposes of CEPA. The 

panel noted that watchdog employees like plaintiff are the most vulnerable to retaliation because they routinely 

speak out when corporate profits are put ahead of consumer safety, and CEPA’s definition of an eligible employee 

does not limit protection based on job title or function. However, when addressing the standard for establishing a 

prima facie CEPA claim, the panel articulated an additional requirement for watchdog employees. Specifically, 

unless a watchdog employee refused to participate in the objectionable employer conduct, the employee must 

demonstrate that he or she pursued and exhausted all internal means of securing compliance. This Court granted 

defendants’ petition for certification and plaintiff’s cross-petition. 217 N.J. 292 (2014). 

HELD: CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and 

until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA 

protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection. 

1. In order to determine whether plaintiff is entitled to bring a CEPA cause of action, the Court must construe 

CEPA’s language. In addressing this question of the Act’s meaning, the Court’s review is de novo. CEPA is 

remedial legislation entitled to liberal construction, with the purposes of protecting whistleblowers from retaliation 
2

by employers and discouraging employers from engaging in illegal or unethical workplace activities. N.J.S.A.

34:19-3 establishes the types of whistleblowing activity for which “an employer shall not take any retaliatory action 

against an employee.” An “employee,” as defined by N.J.S.A. 34:19-2(b), is “any individual who performs services 

for and under the control and direction of an employer for wages or other remuneration.” (pp. 21-25) 

2. Turning to the question of whether watchdog employees like plaintiff are entitled to CEPA protection, the Court 

notes that CEPA’s plain language does not define employees protected by the Act as inclusive of only those with 

certain job functions. Moreover, New Jersey case law has extended the reach of N.J.S.A. 34:19-2(b), not restricted 

it. There is no support in CEPA’s definition of an “employee” to preclude its protection of watchdog employees. 

Restricting CEPA’s protection to a discrete class of employees would contravene two principles of statutory 

construction, namely that courts may not engraft language that the Legislature has not chosen to include in a statute 

and that remedial legislation should be liberally construed. (pp. 26-27)

3. The Court rejects defendants’ argument that watchdog employees must be acting outside the scope of their job 

duties in order to engage in CEPA-protected conduct under N.J.S.A. 34:19-3(c), which requires that a plaintiff 

“[o]bject[] to or refuse[] to participate in any activity, policy or practice. . . .” The plain meaning of the word 

“object” does not support defendants’ interpretation. Given that remedial legislation should be liberally construed, it 

would be wholly incongruent to strain the normal definition of “object” into some implicit requirement that limits a 

class of employee to whistleblower protection only for actions taken outside of normal job duties. This conclusion 

is further supported by subsection (c)’s corollary phrase “refuse[] to participate,” which implies that CEPAprotected conduct can occur within the course of an employee’s normal job duties. Furthermore, since neither 

subsection (a) nor (b) of N.J.S.A. 34:19-3 states or suggests that an employee must be acting outside of his or her 

usual duties to merit protection, it is inexplicable to assume that the Legislature would intend an implicit “job 

duties” exception excluding watchdog employees under subsection (c). (pp. 27-32) 

4. To the extent that defendants and the trial court relied on Massarano v. New Jersey Transit, 400 N.J. Super. 474 

(App. Div. 2008), for the proposition that watchdog employees are only entitled to CEPA protection if acting 

outside of the scope of their jobs, the Court finds that this argument lacks solid foundation. Although Massarano

contains language suggesting that a plaintiff who reports conduct as part of his or her job is not entitled to CEPA 

protection, the analysis in that case is premised on the conclusion that the defendants did not retaliate against the 

plaintiff for reporting the disposal of documents. Thus, reliance on Massarano for recognition of a job-duties 

exception to CEPA’s broad protection to employees misperceives the case’s essential finding of no retaliation and 

overextends its significance. The Court specifically disapproves of any such extrapolation from the Massarano

judgment. Significantly, decisions of this Court have indicated only a contrary approach to CEPA coverage for 

individuals in positions of responsibility for corporate compliance with law and public policy. In sum, there is no 

support in CEPA’s language, construction, or its application in this Court’s case law for the conclusion that 

watchdog employees are stripped of whistleblower protection due to their position or because they are performing 

their regular job duties. (pp. 32-35)

5. Although the Court agrees with the Appellate Division’s finding that watchdog employees are entitled to CEPA 

protection when performing their ordinary job duties, it disagrees with the panel’s reformulation of the elements 

required to establish a prima facie CEPA claim, as set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The 

panel’s requirement that watchdog employees demonstrate pursuit and exhaustion of all internal means of securing 

compliance is incompatible with prior precedent and imposes an obligation nowhere found in the statutory language. 

Where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Consequently, the Court 

modifies the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by 

the statute’s terms. CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim 

unless and until the Legislature expresses its intent that such employees meet a special or heightened burden. (pp. 

35-38)

The judgment of the Appellate Division is AFFIRMED, as MODIFIED, and the matter is REMANDED

for further proceedings consistent with the Court’s opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON join in 

JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUDGE CUFF (temporarily assigned) did 

not participate. 
1

SUPREME COURT OF NEW JERSEY

A-65/66 September Term 2013

073324

JOEL S. LIPPMAN, M.D.,

Plaintiff-Respondent

and Cross-Appellant,

v.

ETHICON, INC. and JOHNSON & 

JOHNSON, INC.,

Defendants-Appellants 

and Cross-Respondents.

Argued January 20, 2015 – Decided July 15, 2015

On certification to the Superior Court, 

Appellate Division, whose opinion is 

reported at 432 N.J. Super. 378 (App. Div. 

2013).

Francis X. Dee argued the cause for 

appellants and cross-plaintiffs (McElroy, 

Deutsch, Mulvaney & Carpenter, attorneys; 

Mr. Dee and Stephen F. Payerle, on the 

briefs).

Bruce P. McMoran argued the cause for 

plaintiff and cross-appellant (McMoran, 

O’Connor & Bramley, attorneys; Mr. McMoran

and Michael F. O’Connor, on the briefs).

Adam N. Saravay argued the cause for amici

curiae New Jersey Business & Industry 

Association, New Jersey Civil Justice 

Institute, Employers Association of New 

Jersey, New Jersey Defense Association and 

New Jersey Management Attorneys, Inc. 

(McCarter & English, Proskauer Rose, 

Gibbons, and Drinker Biddle & Reath, 

attorneys; Mr. Saravay, David R. Kott, 

Christopher S. Mayer, Mark A. Saloman, 
2

Daniel L. Saperstein, Allana M. Grinshteyn, 

Nicholas M. Tamburri, Joseph J. Sarno,

Natalie H. Mantell, Michelle M. Bufano, 

Michelle G. Haas, John A. Ridley, and 

Lawrence J. Del Rossi, of counsel and on the 

briefs).

Andrew W. Dwyer argued the cause for amici

curiae The New Jersey Work Environment 

Council, The New Jersey State Industrial 

Union Council, and 25 other environmental, 

labor, consumer and community organizations, 

and The New Jersey Association for Justice

(The Dwyer Law Firm, Law Office of Bennett 

D. Zurofsky, and Schiffman, Abraham, Kaufman 

& Ritter, attorneys; Evan L. Goldman, of 

counsel; Mr. Dwyer, Mr. Zurofsky, Mr. 

Goldman, and Kristen Welsh Ragon on the 

briefs).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Cross-petitions for certification were granted in this 

matter to address issues related to the application of the

Conscientious Employee Protection Act (CEPA or Act), N.J.S.A.

34:19-1 to -14, to so-called “watchdog” employees. More 

specifically, both petitions concern whether an employee, whose 

job duties entail knowing or securing compliance with a relevant 

standard of care and knowing when an employer’s actions or 

proposed actions deviate from that standard of care, may invoke 

the whistleblower protections afforded under N.J.S.A. 34:19-3 of 

CEPA. 

Plaintiff’s normal job duties included providing his 

medical opinion about the safety of defendant pharmaceutical 

company’s products. After he was terminated from his high-level 
3

position with the corporation, he filed this CEPA action 

claiming that his employer retaliated against him. The trial 

court granted defendants’ motion for summary judgment on the 

ground that plaintiff’s performance of his regular job duties 

could not constitute CEPA-protected conduct. The Appellate 

Division reversed, concluding that watchdog employees are among 

those most in need of CEPA’s protection, and that the plain 

language of the statute does not exempt from protection conduct 

that constitutes a job duty. Lippman v. Ethicon, Inc., 432 N.J. 

Super. 378, 406-08 (App. Div. 2013). In so holding, the panel 

also articulated a tailored standard for evaluating CEPA claims 

asserted by watchdog employees. Id. at 410.

According to plaintiff, the Appellate Division’s standard, 

in effect, raised the bar for the proof that such employees must 

present in order to establish a prima facie CEPA claim because 

it requires demonstration that the employee either refused to 

participate in the objectionable conduct or pursued and 

exhausted all internal means of securing compliance. 

Plaintiff’s petition focuses on whether the Appellate Division 

improperly added an element to his CEPA-authorized cause of 

action, thereby subjecting watchdog employees to a different and 

heightened burden compared to other CEPA plaintiffs. 

Defendants’ petition allows this Court to review the Appellate 

Division’s published decision holding that performance of job 
4

duties by a watchdog employee may constitute CEPA-protected 

activity. 

For the reasons that follow, we affirm the Appellate 

Division’s judgment that CEPA’s protections extend to the

performance of regular job duties1 by watchdog employees. In so 

holding, we disapprove of the standard that the panel

articulated for assessing claims by such employees. The panel’s

attempt to add clarity to the assessment of claims by such 

plaintiffs impermissibly results in adding to the burden for 

this subset of CEPA plaintiffs. By its very terms, the 

statutory cause of action created by CEPA applies equally to all 

employees. There is no evidence of legislative intent to have 

the Act operate any other way. Accordingly, we hold that there 

can be no additional burden imposed on watchdog employees 

seeking CEPA protection, unless and until the Legislature 

expresses its intent to differentiate among the classes of 

employees who are entitled to CEPA protection. 

I.

A.

This matter arose upon the filing of plaintiff’s complaint 

in the Law Division against Ethicon, Inc. (Ethicon) and Johnson 

 

1 We refer to this concept in various ways -- including regular, 

normal, and usual job duties; prescribed duties; and core job 

functions -- as defendants have in this matter.
5

& Johnson, Inc. (J&J) (collectively defendants), alleging CEPA

violations under N.J.S.A. 34:19-3(a) and (c). Plaintiff Joel S. 

Lippman, M.D.,2 alleged in his complaint, among other claims,

that his employment was terminated due to his whistleblowing 

activities, which plaintiff identified as his actions in 

reporting a number of products as dangerous and in violation of 

the federal Food, Drug and Cosmetic Act, 21 U.S.C.A. §§ 301-

399f, and advising that defendants either recall the products or 

perform further research.3 This appeal comes to us on a summary 

judgment record; accordingly, we review the facts in the light 

most favorable to plaintiff, the non-moving party in this 

matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 

523, 540 (1995). The facts are set forth below as presented by 

the parties and as described by the Appellate Division, Lippman, 

supra, 432 N.J. Super. at 382-405.

Plaintiff was employed at Ethicon, a manufacturer of 

medical devices used for surgical procedures, from July 2000

 

2 Plaintiff has a bachelor’s degree in biology from New York 

University, a medical degree from New York Medical College, and 

a master’s degree in public health from Harvard University 

School of Public Health.

3 Plaintiff also alleged that he was terminated because of his 

age, in violation of the Law Against Discrimination, N.J.S.A.

10:5-12(a); however, he voluntarily dismissed that claim after 

the trial court granted defendants’ motion for summary judgment 

on plaintiff’s CEPA claim. 
6

until his termination. Prior to his work at Ethicon, he worked 

from 1990 to 2000 at Ortho-McNeil Pharmaceutical (OMP), as 

director of medical services and then vice president of clinical 

trials. Both Ethicon and OMP are subsidiaries of J&J.

Initially plaintiff served at Ethicon as vice president of 

medical affairs. In 2002, he was promoted to worldwide vice 

president of medical affairs and chief medical officer of 

Ethicon. His direct superior and the person to whom he reported 

at Ethicon was Dennis Longstreet, the company group chairperson. 

Longstreet reported to Michael J. Dormer, J&J’s chairperson for 

the medical devices and diagnostic group. In 2005, Sherilyn S. 

McCoy replaced Longstreet as Ethicon’s company group 

chairperson. 

As vice president of medical affairs, “plaintiff was 

‘responsible for safety, ensuring that safe medical practices 

occurred in clinical trials of [Ethicon’s] products; . . . 

medical reviews, information from a medical standpoint; [and] 

medical writing.’” Lippman, supra, 432 N.J. Super. at 388

(alterations in original). Consistent with those 

responsibilities, plaintiff served on multiple internal review 

boards for Ethicon. Generally stated, those boards addressed 

strategic product activities and evaluated the health and safety 

risks of products. As a member of those boards, plaintiff’s 

function was to provide medical and clinical expertise and 
7

opinions. Id. at 388-90. In short, Lippman was part of 

Ethicon’s high-level policy decision making. 

Of particular relevance in this matter, plaintiff was a 

member of a quality board that “was created to assess the health 

risks posed by Ethicon’s products and to provide ‘medical input’

in determining whether the company needed to take corrective 

measures with respect to their products in the field.” Id. at 

389. At times, recall of a product would become “necessary to 

conform to the requirements of the particular regulatory agency

with jurisdiction, internal policy directives, and/or to protect 

the health and safety of the patient[s].” Ibid. The quality 

board could also take other types of actions, such as 

“correcting a product in the field.” As structured within 

Ethicon’s organization, the quality board was to be accorded

“‘the final say’” in deciding whether to take corrective action 

regarding a product, “even in the absence of a directive from a 

governmental agency.” Ibid. The quality board’s membership 

included the head of research and development, the chief 

financial officer, the head of operations, and the vice 

president of quality and regulatory affairs. Members of the 

quality board were “expected to express their view points from 

their” area of knowledge or expertise. Ibid. 

Plaintiff claims numerous instances in which he, in his 

role on the internal review boards generally, and specifically 
8

the quality board, objected to the proposed or continued sale 

and distribution of certain Ethicon medical products. The 

Appellate Division opinion recounts many in detail. See id. at 

390-403. Those instances, as summarized, reflect that 

plaintiff’s objections were based on his opinion that the 

products were medically unsafe and that their sale violated 

various federal and state laws and regulations. Thus, plaintiff 

voiced concerns about the safety of various products and his 

opinion, in some instances, that the particular product under 

discussion should not go to market, that it should be recalled, 

or that further research was necessary. Plaintiff claims, and 

the record contains support, that plaintiff received “push back”

from other members of these boards and executives whose interest 

and expertise aligned with the business priorities of Ethicon. 

Needless to say, the committees were comprised of professionals 

with their own judgments and opinions on the subjects under 

discussion. Certainly, in this record, factual disputes exist

as to precisely what plaintiff, other board members, and 

executives at Ethicon said and did during these disagreements. 

Moreover, the record also indicates that Ethicon ultimately 

followed many of plaintiff’s recommendations. 

In April 2006, plaintiff was advocating the recall of DFK24, a product he believed was dangerous. Other Ethicon

executives were resistant to recalling the product, but Ethicon
9

eventually did so in late April or early May 2006. On May 15, 

2006, Ethicon terminated plaintiff’s employment. According to 

McCoy’s deposition testimony, “‘Dr. Lippman was terminated 

because he had a relationship, an inappropriate relationship, 

with someone who worked directly for him.’” Id. at 404. Based 

on the record before us, “the alleged relationship came to 

McCoy’s attention when an employee, who was unsatisfied with the 

performance rating he believed plaintiff had given him, 

mentioned [the relationship] to McCoy as a possible explanation 

or motive for plaintiff’s alleged unfair assessment of his work 

performance.” Ibid. McCoy acknowledged that plaintiff’s 

purported romantic partner “was an employee in a department 

under plaintiff’s authority during part of the alleged 

relationship, but “she did not directly report to plaintiff at 

any time.” Ibid. Further, McCoy admitted that she did not know 

of “any prior case in which an Ethicon or J&J employee was 

terminated (or even disciplined) for having a consensual 

romantic relationship with an alleged subordinate,” and she was 

unaware of any written J&J policy “prohibiting the type of 

consensual romantic relationship that allegedly occurred between 

plaintiff and the employee.” Id. at 404-05. 

B.

Defendants filed a motion for summary judgment, seeking to 

dismiss plaintiff’s CEPA action. The trial court granted the 
10

motion. The court relied, in part, on the prior Appellate 

Division decision in Massarano v. New Jersey Transit, 400 N.J. 

Super. 474 (App. Div. 2008), in concluding that, because

plaintiff admitted “it was his job to bring forth issues 

regarding the safety of drugs and products,” he “failed to show 

that he performed a whistle-blowing activity” protected by CEPA. 

The court denied plaintiff’s motion for reconsideration. 

Plaintiff appealed, and the Appellate Division reversed in 

a published decision. Lippman, supra, 432 N.J. Super. 378. The 

panel rejected the trial court’s interpretation of protected 

whistleblowing conduct under N.J.S.A. 34:19-3(c), which the 

trial court held precluded a plaintiff who “[o]bjects to[] or 

refuses to participate in” employer behavior as part of his or 

her job duties from entitlement to protection under CEPA. See

id. at 381, 406-07, 409-10. The panel found the trial court’s 

construction of the statute to be inconsistent with the broad 

remedial purposes of CEPA. See id. at 381, 406-07. To the 

extent that such a reading was implicitly espoused or endorsed 

in Massarano, the Lippman panel expressly declined to follow it. 

Id. at 381-82, 406. 

In emphasizing the incongruity of a construction that cuts 

out watchdog employees from CEPA’s remedial protective purpose, 

the panel noted especially that watchdog employees are the most 

vulnerable to retaliation because they are “uniquely positioned 
11

to know where the problem areas are and to speak out when 

corporate profits are put ahead of consumer safety.” Id. at 

406-07. As further support that job duties are not outcome 

determinative in a CEPA claim, the panel noted that CEPA’s 

definition of an “employee” eligible for the Act’s protection is 

broad and does not limit protection based on job title or 

function. Id. at 407 (citing N.J.S.A. 34:19-2(b)).

Under the panel’s interpretation of protected 

whistleblowing conduct, “[i]f an individual’s job is to protect 

the public from exposure to dangerous defective medical 

products, CEPA does not permit the employer to retaliate against 

that individual because of his or her performance of duties in 

good faith, and consistent with the job description.” Id. at 

410. Applying that approach to the case at hand, the panel 

found that genuine issues of material fact existed and held that

plaintiff had pled facts sufficient for a rational jury to find 

that defendants violated CEPA when they terminated his 

employment. See id. at 382, 408-09.

Importantly, the Appellate Division proceeded to articulate 

a “paradigm” for a prima facie CEPA cause of action for 

employees who perform watchdog activities. The panel built from 

a model set forth by this Court in Dzwonar v. McDevitt, 177 N.J.

451, 462 (2003), and defined a watchdog employee as an “employee 

who, by virtue of his or her duties and responsibilities, is in 
12

the best position to: (1) know the relevant standard of care; 

and (2) know when an employer’s proposed plan or course of 

action would violate or materially deviate from that standard of 

care.” Lippman, supra, 432 N.J. Super. at 410. The panel then 

instructed that in order for a watchdog employee to present a 

prima facie CEPA claim, the employee must demonstrate the

following elements:

First, the employee must establish that he or 

she reasonably believed that the employer’s 

conduct was violating either a law, government 

regulation, or a clear mandate of public 

policy. Second, the employee must establish 

that he or she refused to participate or

objected to this unlawful conduct, and 

advocated compliance with the relevant legal 

standards to the employer or to those 

designated by the employer with the authority 

and responsibility to comply. To be clear, 

this second element requires a plaintiff to

show he or she either (a) pursued and 

exhausted all internal means of securing 

compliance; or (b) refused to participate in 

the objectionable conduct. Third, the 

employee must establish that he or she 

suffered an adverse employment action. And 

fourth, the employee must establish a causal 

connection between these activities and the 

adverse employment action.

[Ibid. (second emphasis added).]

Although this four-prong test largely tracks the standard 

for a prima facie CEPA claim that this Court articulated in 

Dzwonar, supra, 177 N.J. at 462, the language emphasized above

is not part of the Dzwonar test. As the panel’s holding 

recognized, under this additional requirement, unless a watchdog 
13

employee refused to participate in the conduct, such an employee 

must demonstrate that he or she “pursued and exhausted all 

internal means of securing compliance.” Lippman, supra, 432 

N.J. Super. at 410. 

As noted, this Court granted the petition and crosspetition filed in this matter. Lippman v. Ethicon, Inc., 217 

N.J. 292 (2014).

II. 

A.

1.

In support of their petition, defendants assert that the 

Appellate Division erred in holding that protected activity 

under CEPA extends to watchdog employees’ regular job 

responsibilities. They advance a three-prong argument: (1) the 

statutory language of CEPA does not support the Appellate 

Division’s broad holding; (2) the Appellate Division’s holding 

contravenes previous appellate decisions; and (3) the holding 

adversely impacts the “balance between the scope of protected 

activity and the ability of employers to properly run their 

business.”

First, defendants argue that CEPA’s language limits

protected activity to an employee’s conduct that is in 

opposition to the employer. Specifically, defendants contend 

that the “objects to” clause, which provides that employees must 
14

“object[] to, or refuse[] to participate in any activity, policy 

or practice” of the employer to receive CEPA protection, 

N.J.S.A. 34:19-3(c), indicates that the statute protects only 

employee activity that goes beyond the scope of the employee’s 

job responsibilities. According to defendants, “[t]he employee 

logically cannot . . . object[] or refuse[] to participate in 

the very activity, policy or practice that he or she is helping 

to formulate on behalf of the organization.” Applying their 

construction to the matter at hand, defendants argue that all of

plaintiff’s alleged whistleblowing activities were in accordance 

with his job responsibilities and, therefore, cannot be in 

opposition to the employer as they argue the “objects to” 

language requires. Defendants add that Ethicon heeded some of 

plaintiff’s recommendations while he was on the quality board, 

and that plaintiff never reported any of defendants’ putative 

violations to outside authorities. Defendants maintain that 

Ethicon terminated plaintiff’s employment because of his 

relationship with a subordinate, not as a retaliatory measure.

Second, in respect of the assertion that the Appellate 

Division’s holding is inconsistent with prior precedent, 

defendants point to Massarano, supra, where, according to 

defendants, an Appellate Division panel maintained that an 

employee who reports conduct as part of his or her job duties is 

not protected under CEPA. 400 N.J. Super. at 491. Defendants 
15

assert that six unpublished Appellate Division decisions and 

several federal district court cases follow the Massarano

decision. Accordingly, defendants argue that Massarano and its 

progeny should have prevented the appellate panel in this matter

from broadly reading CEPA to include job responsibilities as 

protected activity under the Act.

Finally, defendants advance a policy argument. They 

contend that the Appellate Division’s decision upsets the 

employee-employer balance between the scope of protected 

employee activity and the ability of employers to effectively 

run their businesses. Defendants rely on Pierce v. Ortho 

Pharmaceutical Corp., 84 N.J. 58, 71 (1980), for the proposition 

that protected activity should not interfere with a business’s 

internal operations. Defendants argue that the appellate 

holding in this case is at odds with that principle because it 

will interfere with employers’ ability to make lawful and 

justifiable personnel decisions about watchdog employees who 

make erroneous or overly conservative judgments. According to 

defendants, the Appellate Division’s decision in this matter

creates a class of employees against whom an employer cannot 

take an adverse employment action without risking CEPA 

liability, and it incentivizes employers to no longer entrust 

employees with critical matters of legal compliance or public 

safety.
16

2.

In response to plaintiff’s cross-petition for 

certification, defendants continue to maintain that the 

Appellate Division erred in expanding the scope of protection 

under CEPA and further argue that plaintiff seeks to amplify 

that error by removing an essential element of whistleblowing, 

namely, showing that plaintiff objected by exhausting all 

internal means. Defendants urge this Court to adopt a 

construction of the “objects to” clause that will require 

watchdog employees to exhaustively escalate an issue when 

seeking to compel compliance with law or clear public policy in 

order for an employee’s conduct to be deemed protected activity 

under CEPA. Consistent with that position, defendants contend 

that the Appellate Division simply was tailoring the statute to 

the particular case, not imposing a higher burden on watchdog

employees. They also contend that any reliance on Fleming v. 

Correctional Healthcare Solutions, Inc., 164 N.J. 90 (2000), is 

misplaced because that case did not analyze the language or 

scope of CEPA.

B.

1.

Plaintiff argues in support of the Appellate Division 

holding that CEPA-protected conduct can include the ordinary job 

duties of watchdog employees. Countering defendants’ three-
17

prong argument, plaintiff first relies on the plain language of 

CEPA, which plaintiff asserts unambiguously extends protection 

to all employees and is silent on any job-duty exception when

defining protected whistleblowing conduct. Plaintiff contends 

that the plain language best indicates the Legislature’s intent.

Second, plaintiff argues that the Appellate Division’s 

holding does not conflict with Massarano or its progeny. 

According to plaintiff, Massarano held that the plaintiff’s CEPA 

claim failed because she did not establish that she reasonably 

believed that her employer violated a clear mandate of public 

policy or that her employer acted with a retaliatory motive in 

terminating her employment. Plaintiff maintains that

defendants’ misreading of Massarano stems from a single line of 

dictum that is taken out of context. Moreover, plaintiff is 

dismissive of Massarano’s “progeny” because those cases are 

unpublished and have no precedential value, are factually 

distinct, or fail to engage in a statutory analysis. Plaintiff

also asserts that this Court already has declined to add a “job 

duties” exception to CEPA-protected conduct when it did not 

acknowledge such an exception in Donelson v. DuPont Chambers 

Works, 206 N.J. 243, 256-57 (2011).

Finally, in respect of defendants’ policy argument, 

plaintiff contends that the Appellate Division’s holding strikes 

the proper balance between employee protection and an employer’s 
18

effective running of its business. As plaintiff argues, 

watchdog employees protect employers from themselves by 

deterring employer wrongdoing. Moreover, plaintiff maintains 

that watchdog employees are often the only safeguard between 

profit-driven corporations and an unknowing public. Adopting a 

“job duties” exception, plaintiff argues, would weaken CEPA 

because watchdog employees would have no legal protections, thus 

eliminating the curb against “the corporate evils CEPA was 

intended to prevent.” According to plaintiff, a job-duties 

exception would unduly complicate CEPA claims by requiring 

factfinders to determine whether a plaintiff’s alleged protected 

conduct fell within his or her normal job duties.

2.

On the issue raised in his cross-petition, plaintiff argues 

that although the Appellate Division correctly interpreted the 

scope of CEPA to include watchdog employees, it erred in 

imposing a requirement that those employees must exhaust all 

internal means of compliance. Plaintiff asserts that such a

requirement is inconsistent with the plain language of CEPA for 

the simple but forceful reason that the statute does not 

distinguish among types of employees. 

Rather, plaintiff contends that the Legislature intended

for CEPA to have a broad scope and to allow any whistleblower

employee to bring a retaliation claim. He points to decisions 
19

of our Court to support that intention. Specifically, plaintiff

argues that the panel’s new requirement violates this Court’s 

holding in Dzwonar, supra, 177 N.J. at 462, which established 

the elements for a prima facie case of retaliatory action under 

CEPA. Further, plaintiff maintains that the appellate panel’s 

added requirement for a watchdog employee to establish a prima 

facie CEPA claim is at odds with Fleming, supra, 164 N.J. at 97, 

wherein the Court rejected the argument that an employer could 

require an employee to exhaust the employer’s internal complaint 

procedure prior to qualifying for CEPA protection.

C.

Amici Employers Association of New Jersey (EANJ), Academy 

of New Jersey Management Attorneys (ANJMA), New Jersey Business 

& Industry Association and New Jersey Civil Justice Institute 

(collectively NJBIA), and the New Jersey Defense Association 

(NJDA) reinforce defendants’ argument that CEPA does not protect 

employees acting within the scope of their employment. We do 

not repeat their arguments except to note a few points. 

EANJ emphasizes that employees should be required to

respect the demands of the employer, unless those demands are 

unlawful. ANJMA argues in favor of a higher standard for 

watchdog employees to qualify for CEPA protection if they are to 

be eligible for such protection at all. NJBIA views the instant 

matter as presenting the question of whether CEPA protection
20

should be expanded, which it argues should be an issue for the 

legislative branch, not the Judiciary. Finally, NJDA highlights 

federal and state laws regulating product liability and argues 

that compliance with those provisions requires exclusion of 

watchdog employees performing job duties from CEPA protection.

Amici New Jersey Association for Justice (NJAJ), as well as 

New Jersey Work Environment Council, New Jersey State Industrial 

Union Council, and twenty-five other environmental, labor, 

consumer, and community organizations (collectively NJWEC),

support plaintiff’s contention that CEPA protects employees’ job 

responsibilities. We do not repeat all of their arguments

either except to note the following. 

NJWEC maintains that CEPA’s language of “objects to[] or 

refuses to participate in,” in the opening clause of N.J.S.A.

34:19-3(c), reinforces plaintiff’s position because an employee 

would never be expected to participate in an activity unless it 

fell within his or her job duties in the first place. It 

provides multiple textual and statutory construction bases for 

rejecting any exception for watchdog employees from CEPA 

protection under N.J.S.A. 34:19-3(c). NJWEC also cites to 

whistleblower statutes in other states that extend protections 

to watchdog employees. Further, NJWEC notes that the additional 

exhaustion requirement imposed on watchdog employees under the 

Appellate Division’s opinion exceeds the notice requirement to 
21

employees that the Legislature expressly imposed for other 

subsections of N.J.S.A. 34:19-3. NJAJ addresses defendants’ 

policy arguments -- about the negative consequences of reading 

CEPA to protect the job duties of watchdog employees -- by

noting that those employees remain obligated to bear the burden 

of establishing a prima facie case of retaliatory action.

III. 

In determining whether plaintiff is entitled to bring his 

CEPA cause of action or, conversely, whether defendants should 

be entitled to summary judgment based on their assertion that 

plaintiff is not entitled to whistleblower protection for 

performing his normal watchdog job duties, we must construe 

CEPA’s language. In addressing this question of the Act’s 

meaning, the appellate review is de novo. See Hodges v. Sasil 

Corp., 189 N.J. 210, 220-21 (2007) (citing Balsamides v. 

Protameen Chems., Inc., 160 N.J. 352, 372 (1999)).

The Legislature enacted CEPA in 1986. L. 1986, c. 105. 

The Act is considered remedial legislation entitled to liberal 

construction, its public policy purpose to protect 

whistleblowers from retaliation by employers having been long

recognized by the courts of this State. Abbamont v. Piscataway

Twp. Bd. of Educ., 138 N.J. 405, 431 (1994);4 see, e.g., 

 

4 As explained in Abbamont, supra, CEPA is entitled to liberal 

construction, in part stemming from subsequent legislative 
22

Donelson, supra, 206 N.J. at 257-58 (noting CEPA’s liberal 

construction in light of its “broad remedial purpose”); Dzwonar,

supra, 177 N.J. at 463 (quoting Abbamont, supra, 138 N.J. at

431) (same); Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 

(2000) (quoting Barratt v. Cushman & Wakefield of N.J., Inc.,

144 N.J. 120, 127 (1996)) (same). After nearly two decades of 

implementation, it is beyond dispute that the legislative 

purpose animating CEPA is, as expressed initially in Abbamont, 

supra, 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.” 138 

N.J. at 431. We thus turn to the specific language of CEPA at

issue in this matter.

N.J.S.A. 34:19-3 establishes that whistleblowing activity

is protected from employer retaliation. In relevant part, it 

provides:

An employer shall not take any 

retaliatory action against an employee because 

the employee does any of the following 

[protected activities]:

a. Discloses, or threatens to disclose to a 

supervisor or to a public body an activity, 

policy or practice of the employer, or another 

employer, with whom there is a business 

 

commentary indicating that CEPA’s remedies were meant to be so 

construed. 138 N.J. at 431 (citing Judiciary, Law & Public 

Safety Committee, Statement on Assembly Bills No. 2872, 2118, 

2228 (1990)). 
23

relationship, that the employee reasonably 

believes:

(1) is in violation of a law, or a rule 

or regulation promulgated pursuant to 

law, . . . or, in the case of an employee 

who is a licensed or certified health 

care professional, reasonably believes 

constitutes improper quality of patient

care; or

(2) is fraudulent or criminal . . . ;

b. Provides information to, or testifies 

before, any public body conducting an 

investigation, hearing or inquiry into any 

violation of law, or a rule or regulation . 

. . ; or

c. Objects to, or refuses to participate in 

any activity, policy or practice which the 

employee reasonably believes:

(1) is in violation of a law, or a rule 

or regulation promulgated pursuant to 

law, . . . or, if the employee is a 

licensed or certified health care 

professional, constitutes improper 

quality of patient care;

(2) is fraudulent or criminal . . . ; or

(3) is incompatible with a clear mandate 

of public policy concerning the public 

health, safety or welfare or protection 

of the environment.

[N.J.S.A. 34:19-3.]

An “employee” is defined in a separate section. An 

“employee” is “any individual who performs services for and 

under the control and direction of an employer for wages or 

other remuneration.” N.J.S.A. 34:19-2(b). There are no 
24

exceptions to that generic definition contained in the Act. 

Moreover, our case law has taken an inclusive approach in

determining who constitutes an employee for purposes of invoking

the protection provided through this remedial legislation. See

D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 126-27 

(2007) (extending CEPA protection, in furtherance of its 

remedial goals, to independent contractors through application 

of multi-factor test); see also Stomel v. City of Camden, 192 

N.J. 137, 154-55 (2007) (applying D’Annunzio test in extending 

CEPA protection to legal professional serving as public 

defender); Feldman v. Hunterdon Radiological Assocs., 187 N.J.

228, 241 (2006) (urging courts to examine nature of plaintiff’s 

relationship with party against whom CEPA claims are advanced 

rather than relying on labels); cf. Lowe v. Zarghami, 158 N.J.

606, 617-18 (1999) (noting appropriateness of use of relativenature-of-the-work test to broaden employee status when public 

policy underlying social legislation “dictate[s] a more liberal 

standard” (citations omitted)).

To that statutory prescription of protected whistleblower 

activity for individuals who merit the designation of

“employees” under CEPA, we add only the following general

background law.

Prior to the Appellate Division’s consideration of the 

instant matter, our Court had identified, and reduced to a 
25

simple list, the necessary elements for a plaintiff to establish 

a prima facie claim under CEPA. See Dzwonar, supra, 177 N.J. at

462. Those four elements, which have not been altered to date,

bear repeating. To establish a prima facie CEPA action, a

plaintiff must demonstrate that:

(1) he or she reasonably believed that his or 

her employer’s conduct was violating 

either a law, rule, or regulation 

promulgated pursuant to law, or a clear 

mandate of public policy;

(2) he or she performed a “whistle-blowing” 

activity described in N.J.S.A. 34:19-

3(c);

(3) an adverse employment action was taken 

against him or her; and

(4) a causal connection exists between the 

whistle-blowing activity and the adverse 

employment action.

[Ibid. (citations omitted); see also Winters 

v. N. Hudson Reg’l Fire & Rescue, 212 N.J. 67, 

89 (2012) (quoting same).]

Against that backdrop, we turn to consider whether the 

Appellate Division correctly determined that plaintiff’s ability 

to proceed with his CEPA claim was improperly cut short by the 

trial court’s grant of summary judgment to defendants and 

dismissal of the action.

IV.

A.

1.
26

As the matter before us requires construction of a 

legislatively created cause of action, our job is to implement 

legislative intent. N.J. Dep’t of Children & Families v. A.L., 

213 N.J. 1, 20 (2013) (citing Allen v. V & A Bros., Inc., 208 

N.J. 114, 127 (2011)). In this instance, any fair analysis of 

CEPA’s scope must “begin . . . by looking at the statute’s plain 

language, which is generally the best indicator of the 

Legislature’s intent.” Donelson, supra, 206 N.J. at 256 (citing 

DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

Starting with that plain language, by its very terms, CEPA 

does not define employees protected by the Act as inclusive of 

only those with certain job functions. An “employee” is “any

individual who performs services for and under the control and 

direction of an employer for wages or other remuneration.” 

N.J.S.A. 34:19-2(b) (emphasis added). As noted, our case law 

has extended the reach of that definition, not restricted it. 

See D’Annunzio, supra, 192 N.J. at 126-27. 

Certainly, no opinion from this Court has read into CEPA’s 

definition of an “employee” entitled to protection from 

retaliatory action under N.J.S.A. 34:19-2(b), any restriction to 

discrete classes of employees. To do so would seemingly 

contravene two principles of statutory construction. One is not 

to engraft language that the Legislature has not chosen to 

include in a statute. See Murray v. Plainfield Rescue Squad, 
27

210 N.J. 581, 596 (2012) (“We are charged with interpreting a 

statute; we have been given no commission to rewrite one.”). 

That principle has been invoked in the past when we have 

declined to add restrictive language to CEPA. See Donelson, 

supra, 206 N.J. at 261 (citing Mazzacano v. Estate of Kinnerman, 

197 N.J. 307, 323 (2009)). Another principle requires that, as 

remedial legislation, CEPA should be liberally construed. See

Dzwonar, supra, 177 N.J. at 463 (citing Abbamont, supra, 138 

N.J. at 431, for proposition that, as remedial legislation, CEPA 

should receive liberal construction to achieve “its important 

social goal[s]”); see generally D’Annunzio, supra, 192 N.J. at 

120 (citing cases in support of that longstanding guiding 

principle instructing interpretation of CEPA).

There is simply no support in CEPA’s definition of 

“employee” to restrict the Act’s application and preclude its 

protection of watchdog employees. Defendants concede that 

point, but nevertheless press their argument that plaintiff’s 

claim should be dismissed because he is not entitled to 

protection under N.J.S.A. 34:19-3, which defines protected 

activity under CEPA. Their argument focuses on the Act’s 

description of protected activity in N.J.S.A. 34:19-3(c) -- the 

“objects to” clause. Upon review, that argument is unpersuasive 

and the Appellate Division properly rejected it. 
28

CEPA’s section that defines protected whistleblowing 

activity, N.J.S.A. 34:19-3, does not, on its face, expressly 

limit protection only to watchdog employees who object to 

conduct outside the scope of their job duties, as defendants 

argue. Instead, N.J.S.A. 34:19-3 begins broadly: “An employer 

shall not take any retaliatory action against an employee 

because the employee does any of the following . . . .” It 

proceeds to set forth grounds for a CEPA claim in three 

circumstances. They are when the employee: 

(1) “[d]iscloses, or threatens to disclose to a supervisor 

or to a public body an activity, policy or practice of the 

employer . . . ,” N.J.S.A. 34:19-3(a); 

(2) “[p]rovides information to, or testifies before, any 

public body conducting an investigation, hearing or inquiry into 

any violation of law, or a rule or regulation promulgated 

pursuant to law by the employer . . . ,” N.J.S.A. 34:19-3(b); or 

(3) “[o]bjects to, or refuses to participate in any 

activity, policy or practice . . . ,” N.J.S.A. 34:19-3(c).

Defendants focus on subsection (c)’s use of the verbs of 

“object[]” or “refuse[] to participate” in an activity. 

According to defendants, those verbs are ambiguous and 

implicitly indicate, in this context, that an employee must act 

outside of his or her prescribed duties to engage in protected 

whistleblowing activity. They reason that when an employee 
29

expresses disagreement with an employer’s action or proposed 

action within the context of his or her normal job duties, the 

employee is acting on behalf and in service of the employer; 

therefore, according to defendants, such an employee is not

“[o]bject[ing] to, or refus[ing] to participate in an[]

activity, policy or practice” of the employer as N.J.S.A. 34:19-

3(c) requires. Defendants’ argument, in effect, would have this 

Court place an indirect limitation on the otherwise broad 

definition of an employee found in N.J.S.A. 34:19-2(b). It 

certainly is not directly stated as a limitation in N.J.S.A.

34:19-3(c). 

However, the plain meaning of the word “object” does not 

support defendant’s argument in favor of an implicit requirement 

that employees must be acting outside the scope of their job 

duties in order to engage in CEPA-protected conduct under 

N.J.S.A. 34:19-3(c). See Donelson, supra, 206 N.J. at 256 

(explaining that Court “must ascribe to the words used in CEPA 

their ‘ordinary meaning and significance’”). Webster’s II New 

Riverside University Dictionary defines “object” as: (1) “To 

hold or present an opposing view”; and (2) “To feel adverse to 

or express disapproval of something.” Webster’s II New 

Riverside University Dictionary 810 (1994). That meaning is 

neither ambiguous, nor indicative of a requirement that 

employees go beyond or contradict their job duties in order to 
30

“object[] to” an employer’s activity under subsection (c). In 

construing this remedial legislation, we have repeatedly 

instructed courts to give it a liberal reading. See D’Annunzio, 

supra, 192 N.J. at 120. It would be wholly incongruent to 

strain the normal definition of “object” into some implicit 

requirement that limits a class of employee to whistleblower 

protection only for actions taken outside of normal job duties. 

Yet that is precisely what defendants seek through their 

argument.

Although under subsection (c) the plaintiff must object or 

refuse to participate in an activity, whether the objection or 

refusal is part of his or her job responsibilities is not 

mentioned. There is no language in subsection (c) that hints 

that an employee’s job duties affect whether he or she may bring 

a CEPA claim. If anything, the corollary verbiage of “refuse[] 

to participate” in subsection (c) implies that CEPA-protected 

conduct can occur within the course of an employee’s normal job 

duties because it would be likely that the employee would be 

asked to participate in employer activity within the course of, 

or closely related to, his or her core job functions. Moreover, 

the fact that subsection (c)(1) expressly provides protection 

when “a licensed or certified health care professional” objects 

to or refuses to participate in employer activity that 

“constitutes improper quality of patient care” provides further 
31

indication that CEPA-protected conduct may occur in the course 

of one’s job duties: it would undoubtedly arise most frequently 

within a core job function of a medical doctor to object to or 

refuse to participate in employer conduct that he or she 

reasonably believes “constitutes improper quality of patient 

care.” N.J.S.A. 34:19-3(c)(1). 

Attention to the overall structure of N.J.S.A. 34:19-3 

further supports the conclusion that the “objects to” clause is 

not meant to exclude an employee’s normal job responsibilities. 

Neither subsection (a) nor subsection (b) state expressly, or 

suggest implicitly, that an employee must be acting outside of 

his or her usual duties to merit protection from retaliatory 

employer conduct. Defendants’ argument about the “objects to” 

language ignores subsections (a) and (b), and focuses instead on 

the “object” verb used exclusively in subsection (c). Read as a 

whole, it is inexplicable that the Legislature intended for 

subsection (c) to carry an implicit “job duties” exception that 

excludes watchdog employees, while the other subsections do not. 

See State v. Sutton, 132 N.J. 471, 479 (1993) (finding that 

court’s task is to harmonize individual sections and read 

statute in way that is most consistent with overall legislative 

intent). 

In sum, examination of the Act’s text, structure, and 

remedial nature provides compelling evidence against finding a 
32

legislative intent to exclude watchdog employees from CEPA 

protection under N.J.S.A. 34:19-3(c).

2.

To the extent that defendants rely on Massarano, and the 

trial court found support in that decision for its grant of 

summary judgment in this matter, the argument is without solid 

foundation. In Massarano, supra, the motion court had granted 

summary judgment to the defendants, finding that no law, rule, 

regulation, or clear mandate of public policy had been violated. 

400 N.J. Super. at 486-87. The motion court in that matter

further held that there was no whistleblowing activity, 

determining that the “plaintiff was merely doing her job as the 

security operations manager by reporting her findings and her 

opinion to [a supervisor].” Id. at 491. Although the Massarano

Appellate Division decision contains language that suggests that

a plaintiff who reports conduct as part of his or her job is not 

entitled to protection under CEPA, the panel’s analysis is 

premised on the conclusion that the defendants did not retaliate 

against the plaintiff for reporting the disposal of the 

documents. Ibid. Defendants’ further argument that Massarano

has been relied upon5 as support for recognition of a job-duties 

 

5 Defendants cite to unpublished decisions that ostensibly have 

relied on Massarano for such a position. Unpublished opinions 

have no precedential value and are not to be cited in argument 
33

exception to CEPA’s broad protection to employees is similarly 

unavailing. Any such reliance misperceives the case’s essential 

finding of no retaliation and results in an overextension of 

Massarano’s significance. Moreover, we specifically disapprove

of any such extrapolation from the Massarano judgment. 

Indeed, we note that decisions of this Court have indicated 

only a contrary approach to CEPA coverage for individuals in 

positions of responsibility for corporate compliance with law 

and public policy. 

In Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), our 

Court’s decision upheld a cause of action under CEPA for a New 

Jersey employee who alleged that his employer retaliated against 

him for objecting to a violation of a clear mandate of public 

policy that threatened to harm citizens of Japan. Id. at 195-

96. The plaintiff, Dr. Myron Mehlman, was a toxicologist who 

was Mobil’s director of toxicology as well as manager of its 

Environmental Health and Science Laboratory. Id. at 166, 168. 

Mehlman’s primary job responsibilities included “represent[ing]

Mobil on toxicology matters, and provid[ing] toxicologic and 

regulatory advice for prudent business decisions.” Id. at 168.

(alterations in original) (internal quotation marks omitted).

 

to the courts of this State pursuant to the Court Rules. See R.

1:36-3.
34

While representing Mobil at an international symposium in Japan, 

Mehlman learned that the benzene content of the gasoline at 

Mobil’s Japanese subsidiary was too high. Id. at 169. Mehlman 

so informed the Japanese managers and proceeded to insist that 

the levels were dangerous and had to be reduced. Ibid. Upon 

returning from Japan, Mehlman was placed on indefinite special 

assignment and subsequently fired, allegedly because of a 

conflict of interest between his responsibilities to Mobil and 

his activities on behalf of his wife’s company. Id. at 170-71. 

We had no hesitancy in recognizing that a cause of action 

existed under CEPA based on the fact that “the employee objected 

to a practice that he reasonably believed was incompatible with 

a clear mandate of public policy designed to protect the public 

health and safety of citizens of another country.” Id. at 165. 

Our decision specifically noted that Mehlman’s responsibilities 

were “broad and of international scope,” and included “approval 

of protocols for and monitoring quality of toxicity testing” and 

“informing Mobil of pending developments in toxicology 

regulations that could affect Mobil’s worldwide business.” Id.

at 168. None of those factors were ever regarded as 

disqualifying the plaintiff from advancing a CEPA claim.

Similarly, in Estate of Roach, supra, we addressed a 

scenario involving a plaintiff who was the manager of the 

defendant’s Business Ethics and Conduct Program and who was 
35

substantially involved in implementing the company’s code of 

conduct, which required employees to report possible code-ofconduct violations. 164 N.J. at 602-03. After attempting to

report possible violations, the plaintiff was discharged from 

employment. Id. at 604-06. Our judgment upheld the jury’s CEPA 

verdict in favor of the plaintiff, and in our decision we 

pointed to “the numerous improprieties alleged” by the plaintiff 

against co-workers, the defendant company’s “sensitive position 

as a federal defense contractor,” and the existence of a code of 

conduct that required “strict compliance” for employees of the 

company. Id. at 613.

In conclusion, we find no support in CEPA’s language, 

construction, or application in this Court’s case law that 

supports that watchdog employees are stripped of whistleblower 

protection as a result of their position or because they are 

performing their regular job duties. We therefore affirm the 

Appellate Division’s judgment in this matter that reversed the 

grant of summary judgment to defendants.

B.

Having agreed with the Appellate Division that watchdog 

employees are entitled to CEPA protection when performing their 

ordinary job duties, we turn to the panel’s reformulation of the 

elements for such a cause of action when brought by such 

employees. The panel followed the Dzwonar paradigm for 
36

establishing a CEPA cause of action, but added a caveat, as 

follows:

[T]he employee must establish that he or she 

refused to participate or objected to this 

unlawful conduct, and advocated compliance 

with the relevant legal standards to the 

employer or to those designated by the 

employer with the authority and responsibility 

to comply. To be clear, this second element 

requires a plaintiff to show he or she either 

(a) pursued and exhausted all internal means 

of securing compliance; or (b) refused to 

participate in the objectionable conduct.

[Lippman, supra, 432 N.J. Super. at 410.]

Although we do not doubt its intent to be helpful by adding 

clarity to the proofs required for a watchdog employee’s CEPA 

cause of action under N.J.S.A. 34:19-3(c), whose verbiage the 

panel tracked, we are compelled to disapprove of the panel’s 

formulation. Simply put, the panel has added to the burden 

required for watchdog employees to secure CEPA protection under 

subsection (c) by including an obligation nowhere found in the 

statutory language.

For the same reasons cited earlier, courts should not 

rewrite plainly worded statutes. It is not our job to engraft 

requirements to a CEPA cause of action under subsection (c) that 

the Legislature did not include. It is our role to enforce the 

legislative intent as expressed through the words used by the 

Legislature. In subsection (c), there is no exhaustion 

requirement. 
37

By way of contrast, where the Legislature intended to 

impose an exhaustion requirement, it has said so clearly. 

Through N.J.S.A. 34:19-4, the Legislature has required prior 

notice to the employer and opportunity to correct the activity, 

policy, or practice, in order for a putative whistleblower 

plaintiff to obtain protection against retaliatory action for 

disclosure made to a public body. Thus, a whistleblower 

plaintiff pursuing a cause of action based on disclosure to a 

public body under subsection (a) or (b) must demonstrate 

compliance with N.J.S.A. 34:19-4’s particular exhaustion 

requirement. The legislative silence on any such requirement

applicable to actions brought under subsection (c) is deafening.

Besides lacking support from CEPA’s text, the requirement 

imposed by the panel is incompatible with Fleming, supra. 164 

N.J. at 97 (rejecting argument that employer may insist on 

exhaustion of internal complaint procedures for employee to be 

eligible for CEPA protection). And, as one amicus rightfully 

pointed out, the exhaustion requirement imposed by the Appellate 

Division exceeds the obligation expressly imposed by the 

Legislature under N.J.S.A. 34:19-4, which requires only notice 

and opportunity to correct. 

For all the above reasons, we modify the Appellate Division 

judgment to the extent that it imposed an exhaustion requirement 

not supported by the statute’s terms. We hold that CEPA imposes 
38

no additional requirements on watchdog employees bringing a CEPA 

claim unless and until the Legislature expresses its intent that 

such employees meet a special or heightened burden. 

V.

The judgment of the Appellate Division is affirmed, as 

modified. The matter is remanded for further proceedings 

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA and 

SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON 

and JUDGE CUFF (temporarily assigned) did not participate.
SUPREME COURT OF NEW JERSEY

NO. A-65/66 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

JOEL S. LIPPMAN, M.D.,

Plaintiff-Respondent

and Cross-Appellant,

v.

ETHICON, INC. and JOHNSON &

JOHNSON, INC.,

Defendants-Appellants

and Cross-Respondents.

DECIDED July 15, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST

AFFIRMED AS 

MODIFIED/

REMANDED

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON -------------------- --------------------

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) -------------------- --------------------

TOTALS 5