Workers’ Compensation Department’s Ana-Eliza Bauersachs Elevated to Shareholder

Ana-Eliza T. BauersachsMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Workers’ Compensation Department attorney, Ana-Eliza T. Bauersachs, Esq., has been elevated to Shareholder.

Ms. Bauersachs, a Hamilton resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Ms. Bauersachs received her law degree from Florida State University College of Law, cum laude and her B.A. degree from Florida State University, cum laude.  Upon law school graduation, Ms. Bauersachs worked as a law clerk to the Honorable James R. Wolf in the First District Court of Appeal in Tallahassee, Florida. She is admitted to practice law in New Jersey and Florida.

New Jersey Supreme Court Rules Watchdog Employees Entitled to CEPA Protections

By Ralph R. Smith, 3rd, Esq.

In a highly anticipated decision, the New Jersey Supreme Court recently upheld the right of employees who complain about illegal workplace activities to sue for wrongful retaliation even when the raising of such issues is a part of their designated job duties.  Rejecting a plethora of past rulings by New Jersey’s intermediate appeals court, the Supreme Court in Lippman v. Ethicon, Inc.,  (NJ 2015), held that the Conscientious Employee Protection Act (“CEPA”) does not create any type of carve out for employees who are responsible for engaging in certain “watchdog” activities as part of their job responsibilities.  What this now means for employers is that all employees, even those who may have responsibility in the workforce for ensuring compliance with certain legally required standards of care and reporting any deviations from those requirements, are covered by the statute and  entitled to CEPA’s protections even when the employee’s whistleblowing activities pertain to aspects of those “watchdog” job responsibilities.

The plaintiff in Lippman was formerly employed as the world wide vice president of medical affairs and chief medical officer for the defendant.  His job responsibilities included safety compliance over medical reviews of items being sold by his employer. On numerous occasions, plaintiff objected to the proposed and/or continued sale of certain products claiming that such products were unsafe or defective. Plaintiff’s employment was ultimately terminated, and Lippman claimed that his firing occurred in violation of CEPA due to those foregoing past complaints that Lippman claimed were protected whistleblowing activities.

Based upon the previously existing case law that exempted “watchdog” employees from the scope of CEPA’s whistleblowing protections where such complained of activities simply involved the employee performing his job obligations, the trial court dismissed plaintiff’s complaint.  When the matter was subsequently appealed, the intermediate appeal court refused to follow this earlier case precedent, concluding in part that allowing “watchdog” whistleblowing claims was required by CEPA because such employees are in an extremely vulnerable position to suffer retaliation for doing their jobs.  In ultimately agreeing with that appeal decision, the Supreme Court found no textual support for an exemption for “watchdog” employees, and broadly interpreted the scope of CEPA’s protections to eliminate what it concluded were the evils of retaliation as intended by the legislature in passing CEPA.  While siding with the earlier appeal court ruling, the Supreme Court likewise thought that this ruling went too far in imposing a higher standard of proof in the form of a mandated internal whistleblowing reporting exhaustion requirement that the Court concluded went beyond the elements of proof ordinarily applied to CEPA claims.

With the Supreme Court’s expansive Lippman ruling that broadens the class of employees who are protected by CEPA to encompass all employees in one’s workforce, it is incumbent upon employers to make employment related decisions free of any type of retaliatory animus that could result in a CEPA claim against the company, even when those employees have taken adverse positions against the company (as Lippman did here) as part of his job obligations.  No longer will employers have the benefit of what was at least some common law recognized limits on the kinds of employees statutorily protected by CEPA, which means that this can no longer be used as grounds for ignoring the pleas of a “watchdog” employee engaged in possible whistleblowing activities.

One final note: for employers who may not be aware, CEPA in addition to creating a possible ground for a wrongful discharge claim also requires that employers provide its workforce annually with individual notices advising employees about their whistleblowing rights under the CEPA statute.  If your company is not in compliance with such notice requirements, which includes having a CEPA whistleblowing policy as part of your company employee handbook, you should take steps now to immediately remedy such issues and seek legal advice to answer any further CEPA compliance questions.

Rescue Squad Determined Not to be a Public Agency Subject to OPRA

By Betsy G. Ramos, Esq.

Plaintiff Fran Brooks sued the Tabernacle Rescue Squad alleging a violation of the Open Public Records Act (OPRA) and the common law right to access. Her complaint was dismissed by the trial judge, who ruled that the Squad did not qualify as a public agency for purposes of OPRA, and, in Brooks v. Tabernacle Rescue Squad, 2015 N.J. Super. Unpub. LEXIS 1584 (App. Div. July 1, 2015), she filed an appeal of that decision.

She had requested “township records” of the Tabernacle Rescue Squad’s reports for drivers of all ambulances and rescue truck for the period of January 1, 2013 to July 31, 2013. The Squad denied the request, stating that it is a non-profit charitable organization 501-C3, created and maintained by volunteer emergency medical technicians, was not created as part of the Township and is not a public agency for purposes of OPRA.

The plaintiff argued that the Squad should qualify as a public agency because of the Township’s substantial financial support of the Squad, coupled with its limited immunity under the Tort Claims Act and its performance of a government function as the Township’s official and exclusive rescue squad. The Squad, however, stressed that it has its own trustees and elected officers, none of whom is appointed by the Township and conducts its activities independent of any control by the municipality. All of its members are volunteers. The Squad conducts its activities subject to its own budget, which is not subject to Township approval.

The trial court judge found the Squad’s formation by private citizens independent of Tabernacle and the Township’s lack of direct control over the leadership or daily operation of the Squad dispositive. He also rejected the argument that the Squad’s performance of a government function is sufficient to qualify it as a public agency under OPRA. Further, he found that no court has held that an organization is a public agency solely because it received substantial government funding.

The Appellate Division agreed with the trial court judge and his reasoning, upholding the dismissal of the complaint. It found that the Squad, having been founded by private individuals and conducting its operations wholly free of municipal control, even though with financial support permitted by statute, cannot be considered a public agency under OPRA. Because the Squad is not a public agency and its volunteer members do not conduct government business, plaintiff was likewise not entitled to documents under the common law.

Carjacking Victim Entitled to UM Benefits in New Jersey

By Gina M. Zippilli, Esq.

Generally speaking, to be entitled to UM benefits in New Jersey, an insured must show that a vehicle is uninsured; that the claimed injuries were the result of an accident; and that the injury arose out of the ownership, maintenance or use of the insured vehicle.

The issue in Gordon v. Liberty Mutual Fire Ins. Co., A-4446-13T2, (App. Div., July 16, 2015) was whether an insured who sustained injuries during a carjacking after exiting her vehicle but before the assailants entered the vehicle was entitled to UM benefits.  The facts in Gordon are simple: the insured driver was carjacked in her driveway.  After exiting her vehicle, two men approached her and demanded the keys to the insured’s Mercedes.  After she refused, an altercation between the three ensued resulting in the insured sustaining injuries.

Liberty Mutual denied UM benefits on the grounds that the insured was already outside of the vehicle when she sustained the injuries and thus the requisite  “substantial nexus” between the vehicle and the injuries was absent.  The trial court agreed, granted summary judgment to Liberty, and further reasoned that while the car may have been a target of the assailants the men were not “operators” of the Mercedes at the time of the injuries.

The Appellate Division reversed.  Agreeing with the insured that the carjacking rendered the vehicle “uninsured,” the court had to next tackle whether the assailants were “operators” of the vehicle.  Noting that the UM statute does not define the term “operator,” the court relied on the definition of that term as set forth in other statutes, most notably N.J.S.A. 39:4-50 – driving under the influence- to conclude that an operator includes conduct that evidences an intent, combined with movements, to put a car in motion.  Here, giving plaintiff all reasonable inferences, the court was convinced that the verbal actions and physical movements of the men indicated their intent to exercise control over the car even if they had not yet done so.  In other words, it was irrelevant whether the two men had actually physically entered the vehicle.

Like the term “operator,” the phrase “arising out of the use of motor vehicle,” is also left undefined by the UM statute.  In finding this prong satisfied, and thus the requisite substantial nexus, the court reasoned that the use of the Mercedes played a critical role in the resulting injuries.  Summary judgment reversed.

Associate Lauren Tedesco Joins Capehart Scatchard’s Labor & Employment and School Law Departments

lauren_tedescoMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Lauren E. Tedesco, Esq. has joined the firm’s Labor &  Employment and School Law Departments in its Mt. Laurel office.

Ms. Tedesco, a Gladwyne, PA resident, focuses her practice in the representation of public and private sector employers in the areas of labor and employment, school law, and civil rights law matters.

Ms. Tedesco received her law degree from Rutgers University School of Law in Camden and her B.A. degree in Criminology and Criminal Justice from the University of Maryland.  Upon law school graduation, Ms. Tedesco worked as a judicial law clerk to the Honorable Anthony M. Pugliese, in the New Jersey Superior Court, Camden County Vicinage. She is admitted to practice law in New Jersey and Pennsylvania.

Workers’ Compensation Shareholder John Geaney Addresses Rehabilitation Professionals

john-geaneyMt. Laurel, NJ – – Capehart Scatchard Shareholder, John H. Geaney, Esq., recently spoke at the 16th Annual PA/NJ Conference of the International Association of Rehabilitation Professionals held at the Tropicana Casino & Resort in Atlantic City, New Jersey.

Mr. Geaney’s presentation was titled, “Legal Perspectives:  Workers’ Compensation, FMLA and Implications of Social Media.”  Mr. Geaney presented various case scenarios relating to recent opinions covering these issues.