The laws on whistleblower protections offered in both New Jersey (NJ) and New York (NY) are more comprehensive than those offered in other states. This implies that employers working in the life sciences field and operating in both NJ and NY must be aware of the specific protections entitled to whistleblowers under New York’s Labor Law (NY Lab. Law § 741) and New Jersey’s Conscientious Employee Protection Act (CEPA) (NJSA § 34:19-3).
In light of these protections, it is, therefore, important for employers to have a hands-on guide with key strategies and techniques of how whistleblower claims in the life sciences industry should be handled.
Handling Whistleblower Claims in the Life Sciences Industry
We have mentioned in the past blog posts under this series that the life sciences industry is highly regulated; thus, any potential violation of regulations and laws could lead to legal actions against the employer, and it is not possible to entirely do away with such claims. However, in an attempt to avoid and keep, although not wholly, whistleblower claims at bay, employers within the life sciences should adopt and implement several strategies. Some of these strategies include but are not limited to (1) documenting the response an employer gives following reports of noncompliance, (2) requiring managers to certify compliance, (3) requiring employees to report noncompliance, (4) mandating training on compliance for employees, (4) creating a compliance program for employees, and (5) conducting client-attorney privileged audits.
In this regard, while investigating the issue at hand should be the first step, every employer within this industry must be adequately prepared to properly and promptly address whistleblower claims should they arise. The objective of such an investigation should be to (1) preserve and make a complete record of all evidence, (2) confirm disclosure requirements and take prompt corrective action, (3) facilitate fact-based decision-making, and (4) prevent the issue from spilling to the public domain, (5) obtain an objective and full understanding of the facts, and (6) confirm adherence to employer policies.
This perhaps goes without saying that preventing the issue(s) leading to the whistleblowing claim(s) from spilling to the public domain is the most crucial objective of such an investigation. Generally, employers within the life sciences industry may manage to avoid unwanted media attention, legal claims from affected victims and/or clients, and inquiries from the federal and/or state governments if they can handle whistleblower claims and complaints internally. It is also crucial for these employers to take caution about the personnel involved when conducting the investigations. This is because while third-party investigators, compliance officers, and human resources personnel are good choices, an employer may benefit from the client-attorney privilege’s inadvertent waiver by involving their legal team.
Finally, the employer facing a whistleblowing claim should take several measures and steps after conducting the investigation and meeting its objectives. Some of these measures and actions include (1) updating and/or reviewing written compliance, procedures, programs, and/or policies, (2) conducting additional training on compliance, if necessary, (3) evaluating and addressing how the investigation impacted the workforce, (4) monitoring for retaliation against witnesses or complainant(s), and (5) addressing and conducting separate investigation(s) on any sensitive issue(s) arising afterward.
In Part VI of this series, we shall move the discussion forward and hammer on common compliance issues within the life sciences industry, including hour and wage regulations, in our blog post titled “Hour & Wage Exemption Classification in Life Sciences Industry.”
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer & Author.