Home Commercal & Busness Ltgaton Artcles Independent Contractor Whstleblowers By Bors Peyzner November 21, 2014 Federal and state laws protectng whstleblowers employees who are retalated aganst because they report on or dsclose ther employer s msconduct have become more prevalent. The reach of these laws, ncludng the codfcaton of common-law protectons, has expanded correspondngly. As companes grow larger, the possblty of fraud, msconduct, and llegal or unethcal practces wthn a company also has ncreased. Whstleblowng by employees therefore has been encouraged to ensure that employers do not engage n wrongdong. In fact, whstleblowng has been recognzed to be of such mportance that, on July 30, 2013, the Unted States Senate passed Resoluton 202 establshng July 30 as Natonal Whstleblower Apprecaton Day. There are many federal and state laws that now protect employees who blow the whstle on ther employers msconduct. As recently as March 23, 2010, the Patent Protecton and Affordable Care Act (ACA) was sgned nto federal law. Pub. L. No. 111-148, 124 Stat. 119 (2010). The ACA provdes broad whstleblower protecton to employees who are subjected to retalaton for reportng potental volaton of consumer protecton laws such as employer denal of nsurance due to a preexstng condton or retalaton aganst employees who receve a tax credt or a subsdy. 29 U.S.C. 218c. The ACA s whstleblower protecton apples to vrtually all publc and prvate employees and any employer, and further supports the polcy vew that whstleblowers are of crtcal mportance. Smlarly, each state has varyng degrees of laws that protect whstleblowers from retalaton. For example, New Jersey s Conscentous Employee Protecton Act (CEPA) prohbts employers from retalatng aganst employees who dsclose, object to, or refuse to partcpate n actons that they reasonably beleve are ether llegal, fraudulent, or n volaton of publc polcy. N.J. Stat. Ann. 34:19-1 et seq. The New Jersey Supreme Court has descrbed CEPA as the most farreachng whstleblower law n the Unted States. Ballnger v. Del. Rver Port Auth., 800 A.2d 97 (N.J. 2002). Nevertheless, CEPA lke most whstleblower protecton laws by ts terms protects only employees from retalatory conduct. In the wake of Enron, WorldCom, and the Bernard Madoff scandal, the queston has become: who qualfes as an employee? Recent court decsons ndcate a trend to extend whstleblower protecton to ndvduals whom one mght generally consder to be ndependent contractors, and not lmt such protectons to tradtonal employees. Ths has been done through statutory nterpretaton as well as applcaton of tests to factually determne whether an ndvdual s an employee or an ndependent contractor. 1
Ths extenson of whstleblower protecton could lead to expanded areas of lablty for employers who utlze ndependent contractors. U.S. Supreme Court Protects Independent Contractor Whstleblowers Federal whstleblower protecton was extended and bolstered on March 4, 2014, by the Unted States Supreme Court. In Lawson v. FMR LLC, 134 S. Ct. 1158 (2014), the Court was asked to determne f the whstleblower protecton contaned n the Sarbanes-Oxley Act of 2002 (SOX), 15 U.S.C. 7201 et seq., extended to employees of prvately held contractors and subcontractors that perform work for publc companes. In Lawson, ndvduals who worked for prvate companes that provded advsory servces to a publcly held famly of mutual funds rased concerns about allegedly naccurate statements made n the mutual funds draft SEC regstraton statements and were fred, allegedly n retalaton for rasng those concerns. In a 6 3 decson, the Supreme Court found that SOX s whstleblower protecton dd, ndeed, extend to those ndvduals, who were employees of prvately held contractors and subcontractors performng work for publc companes. In reachng ts decson, the Court nterpreted the 2010 Dodd-Frank Wall Street Reform and Consumer Protecton Act (Dodd-Frank). 12 U.S.C. 5301 et seq. Dodd-Frank prohbts publcly traded companes from dschargng or n any other manner dscrmnatng aganst a whstleblower n the terms and condtons of employment that are protected under SOX. The pertnent porton of SOX provdes: No company... or any offcer, employee, contractor, subcontractor or agent of such company... may dscharge, demote, suspend, threaten, harass, or n any other manner dscrmnate aganst an employee n the terms and condtons of employment because of [whstleblower actvty]. 18 U.S.C. 1514A(a). Dodd-Frank tself does not defne who qualfes as an employee. Therefore, the Court tself drew the parameters of the term employee. The Court analyzed the ntent of Congress, whch enacted SOX to thwart another Enron debacle. Further, the Court explaned that outsde professonals, such as lawyers or accountants, typcally are n the best poston to report fraud and therefore fear retalaton for dong so. In the case of Enron, for example, the accountng frm Arthur Andersen was n that poston. The Court therefore held that under the statutory language of SOX, contractors and subcontractors of publcly traded companes are protected from retalaton after blowng the whstle. Lawson, 134 S. Ct. at 1171. New Jersey Whstleblower Law Protects Independent Contractors Smlarly, the New Jersey Supreme Court held n 2007 that CEPA, the New Jersey whstleblower law, protected ndvduals under certan crcumstances who mght otherwse be classfed as ndependent contractors from adverse employment acton n retalaton for exposng an employer s crmnal, fraudulent, or corrupt actvtes. D Annunzo v. Prudental Ins. Co. of Am., 927 A.2d 113 (N.J. 2007). CEPA defned an employee as any ndvdual who performs servces for and under the control and drecton of an employer for wages or other remuneraton. N.J. Stat. Ann. 34:19-2(b). Thus, on ts face, ndependent contractors were not protected by that provson. Nevertheless, the D Annunzo court held that the protectons under CEPA extended to ndependent contractors who met certan condtons. The court explaned that CEPA s remedal 2
socal legslaton desgned to protect and encourage whstleblowng and dscourage retalaton aganst whstleblowers. D Annunzo, 927 A.2d at 118. Wth ths n mnd, the court held that labels can be llusory and, therefore, CEPA s defnton of an employee must be read expansvely. The court found that applcaton of the statute to nontradtonal workers turned on three general factors: (1) the degree of employer control over the ndvdual s work, (2) the worker s economc dependence on the work relatonshp, and (3) whether the work of the ndvdual s a functonally ntegral part of the employer s busness. The court then adopted a 12- factor test ntally set out by the appellate dvson n Pukowsky v. Caruso, 711 A.2d 398 (N.J. Super. Ct. App. Dv. 1998), to determne f an ndvdual qualfes for CEPA protecton. Applyng the Pukowsky test, whch was developed n that case to determne whether an ndependent contractor was elgble for protecton as an employee under another New Jersey employment statute, the Law Aganst Dscrmnaton, an ndvdual wll qualfy as an employee enttled to CEPA protecton f: the employer controls the means and manner of performance; the occupaton s one that an employer can be requred to supervse; the worker has the skll set that matches what the employer normally seeks of ts employees to perform a job; the worker s provded wth equpment and a workplace by the employer; the worker s contnuously provdng servce to the employer; the worker s pad drectly by the employer; the worker s actually termnated by the employer; the worker gets annual leave; the worker s an ntegral part of the busness of the employer; the worker accrues retrement benefts; the worker s Socal Securty tax s pad by employer; and the partes ntend the relatonshp to be that of an employee-employer. Thus, any ndvdual who has become one of the cogs n an employer s enterprse mght be consdered an employee enttled to CEPA protecton f that ndvdual meets the elements of the Pukowsky test. D Annunzo, 927 A.2d at 122 23. Gven the economc realtes of twenty-frst century employment and the recognton of the mportance of whstleblowers, t s not surprsng that the New Jersey Supreme Court broadened the applcaton of CEPA and extended ts protectons to ndvduals who mght otherwse be consdered ndependent contractors. Employers now must be wary because New Jersey has expanded the pool of ndvduals who can potentally qualfy for CEPA protecton. Subsequent to D Annunzo, courts n New Jersey routnely utlze the 12-factor test to determne whether CEPA protecton should be afforded to ndvduals who may not otherwse be consdered employees n the tradtonal sense. The Trend to Expand Whstleblower Protecton n Other States In addton to New Jersey, courts n other states have begun to evaluate whether an ndvdual s an employee or an ndependent contractor for purposes of determnng whether that ndvdual can seek protecton under state whstleblower laws. See, e.g., Gera v. Cty of Bellevlle, No. 294959, 2012 WL 2335920 (Mch. Ct. App. June 19, 2012) (applyng the economc realtes test 3
to determne f ndependent contractors qualfy as employees warrantng whstleblower protecton). In addton, Delaware went as far as to amend ts whstleblower ant-retalaton laws to specfcally nclude ndependent contractors. Del. Code Ann. 1701 et seq. Practcal Steps Employers Can Take to Lmt Lablty Courts have broadened whstleblower protecton laws to apply to both employees and ndependent contractors n order to encourage ndvduals to blow the whstle on employer msconduct. As a result, ndvduals who do so can seek comfort n the fact that they wll be afforded protecton from retalaton. On the other hand, there s now a greater rsk of ncreased employer lablty. Employers should therefore take steps to mnmze any lkelhood of beng subjected to whstleblower suts. Frst, employers should develop specfc polces to effectvely manage employee reportng of alleged msconduct, and the treatment of such reportng employees, ncludng protecton from retalaton. Whstleblowng polces should provde a gudelne wthn whch employers can respond to employees concerns that employers commtted any alleged wrongdong. Employers should assgn a manageral-level employee the responsblty for nvestgatng all employee whstleblower complants. Then, once a complant s made, employers should do the follow three tasks: 1. Determne f a dsclosure relates to ether past, current, or proposed conduct that may be mproper. 2. Determne f t s possble that the employee has reasonable grounds to beleve that the alleged conduct has occurred. 3. Advse the employee makng the dsclosure of the decson and permt an employee who may dsagree wth the decson tme to provde addtonal nformaton. Second, the same process and procedures should apply to ndvduals who may be consdered ndependent contractors utlzed by the employer. Even more sgnfcantly, employers should make clear n ther contracts wth ndependent contractors that the employer does not control or drect the work performed by the ndependent contractor, and that the ndependent contractor s free to work for other ndvduals or companes at the same tme. Smlarly, employers should not treat ther ndependent contractors the same way they treat employees n such areas as manner and method of payment for work performed; supervson of work; provson of a workplace and workplace equpment and tools; provson of benefts, such as nsurance, vacaton tme, and other pad leave; and payment of Socal Securty and state dsablty taxes. The key for employers s to nsttute such polces proactvely and to educate ther employees, as well as ndependent contractors wth whom they do busness, n order to avod potental ltgaton. A key frst step for employers s to consult experenced counsel to assess corporate governance and complance and assst n the development and mplementaton of approprate procedures that can mnmze exposure to lablty from potental whstleblowers. Keywords: commercal, busness, ltgaton, Affordable Care Act, CEPA, employer lablty, ndependent contractor, whstleblower, Sarbanes Oxley, SOX, Dodd-Frank, retalaton. 4
Bors Peyzner s wth Bressler, Amery & Ross, P.C., n Florham Park, New Jersey. 5