Hasan v. U.S. Dep’t of Labor, 545 F.3d 248 (3d Cir. 2008)

The Third Circuit recently held that an employer’s failure to hire an applicant for allegedly retaliatory reasons is a sufficient basis for a lawsuit, even where the applicant had merely responded to an internet advertisement and was not offered a job.

Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008)

The Second Circuit has held that whistleblower claims brought under the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, are arbitrable and thus may be subject to mandatory arbitration pursuant to an employment agreement.

Massarano v. New Jersey Transit, 400 N.J. Super. 474 (App. Div. 2008).

In a recently published decision, the Appellate Division of the Superior Court of New Jersey held that a Security Operations Manager who objected to the disposal of New Jersey Transit blueprints for bridges, tunnels, a rail operations center, underground gas lines, and NJT buildings, in bins on a gated loading dock, did not state a prima facie case under the New Jersey Conscientious Employee Protection Act (“CEPA’), N.J.S.A. §§ 34:19-1 et seq., because disposal of such documents did not constitute a clear violation of a statute, regulation or public policy, and because the Security Operations Manager was merely doing her job.

Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008).

A public employee, who incurs an adverse employment action as a consequence of filing a lawsuit addressing purely private concerns, cannot then sue his employer for retaliation under the First Amendment. A public employee’s speech is protected from retaliation under the First Amendment only if the employee spoke as a citizen on a matter of public concern. A public employee cannot transform a personal grievance into a matter of public concern simply by invoking a supposed popular interest in the way public institutions are run.

Reddington v. Staten Island University Hospital, 511 F.3d 126 (2d. Cir.2007).

The United States Court of Appeals for the Second Circuit has certified two questions, concerning New York’s general and health care whistleblower statutes, to the New York Court of Appeals.

The underlying dispute in Reddington concerned a hospital administrator who was fired for alleged insubordination, and who then sued her employer, alleging numerous state and federal causes of action, including, among others, age discrimination, intentional infliction of emotional distress, breach of contract, violation of the Fair Labor Standards Act, and violation of New York’s general and health care whistleblower statutes. After most of these claims were either withdrawn or dismissed, the plaintiff appealed from the dismissal of her health care whistleblower and contract claims.

Aguerre v. Schering-Plough Corp., 393 N.J. Super. 459 (App. Div., May 25, 2007).

The Appellate Division of New Jersey applied New Jersey’s whistleblower protection law, the Conscientious Employee Protection Act (“CEPA”), to claims whose operative facts occurred solely in Argentina, suggesting that CEPA’s reach can be worldwide under the right circumstances.  In Aguerre, the plaintiffs alleged that they were fired as a result and in retaliation of objecting to an Argentine subsidiary’s corrupt practices in Argentina.  All of the operative facts of the case occurred in Argentina.  The plaintiffs entered into settlements that were reduced to judgments in Argentina.  The plaintiffs brought suit in New Jersey, and the Appellate Division allowed their CEPA claim to proceed because their complaint raised substantial public policy issues in the context of the corporate retaliation against whistleblowers employed by a foreign corporation with its headquarters in New Jersey, and specifically because the plaintiffs contend that they were coerced into signing the settlement agreements.