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Bad Behavior: If Reporting It Is Your Job, You May Not Be a Whistleblower

Posted by Frank Steinberg | Feb 28, 2012 | 0 Comments

While cleaning out my briefcase this morning I ran across a printout of White v. Starbucks, an unpublished New Jersey Appellate Division opinion that addresses an interesting situation under CEPA, New Jersey's whistleblower statute.  I meant to write about this case when it came out in December, 2011.  It's not an earth-shattering decision, but the case apparently was considered to be important enough to draw amicus briefs from the NJ Employers' Association and the National Employment Lawyers Association/NJ (whose membership consists of attorneys who represent employees in employment law cases).  Here's the short version.

The plaintiff, Kari White, was a new district manager for Starbucks, responsible for several stores.  It seems that she did her job aggressively and ruffled some feathers among the store managers who reported to her.  Among the things that she uncovered in stores, and reported, were unsanitary store conditions and regrigerator cases that were too warm to safely store food.  There was more, but the details are not important for our purposes.

The store managers complained, and eventually White was was given a choice between resigning or being fired.  She resigned.  She subsequently reported some of what she considered to be unlawful activity at Starbucks to the local police.

White filed a CEPA claim against Starbucks.  The trial court dismissed as a matter of law.  The Appellate Division affirmed the dismissal on appeal, relying on an earlier opinion, Massarano v. New Jersey Transit.  The rule of Massarano is that if the issues on which a CEPA plaintiff bases her claim fall within her job-related dutues, then she she is not engaged in activities that are protected by CEPA.  That rule was held to invalidate White's claim.

If White held a different position within Starbucks and had reported the same conduct, would she have had a CEPA claim?  She very well may have, as long as the reporting of such claims did not fall within the scope of her job function.  So, in New Jersey, if two people report the same unlawful behavior, it's possible that one will have a CEPA claim and the other will not.  It all depends on their jobs.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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