Many professions require a person to be licensed before they can work in their chosen field such as medicine, nursing, law, dentistry, teaching, accounting, pharmacy, psychology, engineering, and architecture, to name a few. Many, if not all, of these professions require the practitioner to adhere to a professional code of ethics or code of responsibility. Recently, in a case entitled Steven Trzaska v. L’Oreal USA, Inc., 2017 U.S. App. LEXIS 13381 (decided July 25, 2017), the United States Court of Appeals for the Third Circuit concluded that an employer who subjects an employee who is a licensed professional to workplace retaliation for refusing to violate a code of professional conduct violates New Jersey’s whistleblowing law, i.e., New Jersey’s Conscientious Employee Protection Act (CEPA).
Steven Trzaska worked as a supervising patent attorney for L’Oréal USA, Inc. (L’Oréal). His team’s job was in part to file patent applications with the United States Patent and Trademark Office (USPTO). The patent team he was assigned had to satisfy an annual 40 patent application filing quota. Management officials at L’Oréal told Trzaska and his team members that if they failed to meet the quota, “there would be consequences which would negatively impact their careers and/or continued employment.” Notwithstanding management’s threat, the patent team did not believe it was able to meet the mandatory quota without filing frivolous patent applications.As a licensed attorney required to follow professional rules of conduct and the rules of the USPTO, Mr. Trzaska made it known to L’Oréalmanagementthat neither he nor his team would file patent applications they in good faith believed were not patentable. This meant the patent quota was not attainable. After Mr. Trzaska’s views become known to L’Oréal management, they presented him with two severance packages requiring him to leave the company. When Mr. Trzaska refused to accept these severance offers, he was fired. Thereafter, Mr. Trzaska filed a lawsuit against L’Oreal alleging he was fired in violation of CEPA. The United States District Court dismissed Mr. Trzaska’s lawsuit finding that he did not engage in the conduct protected under CEPA. Mr. Trzaska appealed the dismissal of his case to the Third Court.
CEPA protects employees who blow the whistle by, among others, disclosing to a supervisor “an activity, policy or practice of the employer . . . that the employee reasonably believes . . . is in violation of a law, or a rule or regulation promulgated pursuant to law,” N.J.S.A. 34:19-3(a)(1), or by objecting to or refusing to participate “in any activity, policy or practice which the employee reasonably believes . . . is in violation of a law . . . .,” or by objecting to or refusing to participate in any activity, policy or practice which “is incompatible with a clear mandate of public policy concerning the public health, safety or welfare . . . .” N.J.S.A. 34:19-3(c)(1) and (3). A plaintiff who pursues a CEPA claim need not show that his or her employer or another employee actually violated the law or a clear mandate of public policy. Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Instead, the plaintiff simply must show that he “reasonably believes” that to be the case. Id. This is because the goal of CEPA, is “not to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare.” Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).
In Trzaska, the Third Circuit in a 2 to 1 split decision,reversed the District Court’s decision to dismiss, finding that Trzaska had sufficient grounds to bring a CEPA claim. In doing so, the Court concluded that Trzaska’s allegation that L’Oréal was instructing or threatening its patent attorneys to disregard the rules of professional conduct is a violation of the public policy mandate under CEPA. The Third Circuit determined that CEPA protection was triggered because a patent itself is relevant to public policy and violation of the rules ofprofessional conduct can harm the public’s interest. Hence, termination for failure to disregard the ethical obligations of one’s profession is a violation of CEPA.
If you have suffered retaliation from your employer for having disclosed, objected to, or refused to engage in conduct you reasonably believed violated law or public policy, then you are urged to immediately contact Mashel Law at (732) 536-6161 or fill out the contact form on this page for immediate help.