Joel S. Lippman, M.D. v. Ethicon, Inc. (073324)

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
Conscientious 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
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 CEPA-
protected 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.

2
 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,

1
 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

2
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

3
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.
4
& 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.

5
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

6
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

7
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 DFK-

24, a product he believed was dangerous. Other Ethicon

executives were resistant to recalling the product, but Ethicon

8
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

9
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

10
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

11
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

12
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 cross-

petition 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

13
“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

14
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.

15
 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-

16
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

17
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

18
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

19
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

20
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
21
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)).

22
 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

23
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 relative-

nature-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

24
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.

25
 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,

26
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.

27
 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

28
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

29
“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

30
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

31
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
32
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.

33
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

34
substantially involved in implementing the company’s code of

conduct, which required employees to report possible code-of-

conduct 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

35
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.

36
 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

37
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.

38
 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

AFFIRMED AS
CHECKLIST 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