Gary v. The Air Group, Inc. On February 3, 2005, the Third Circuit in Gary v. The Air Group, Inc. reversed the District Court’s dismissal of an employee’s “whistle blowing” claims pursuant to New Jersey’s Conscientious Employee Protection Act (CEPA). The District Court held that the employee’s state law whistle blower claim was preempted by the federal Airline Deregulation Act (ADA) as amended by the Whistleblower Protection Program (WPP). In this case, the employee was employed from March 15, 2001 through August 30, 2001 as a co-pilot. In July 2001, the employer hired a new pilot- in-command for the group. The plaintiff spent approximately four days assisting the pilot-in-command with preparations for a Federal Aviation Administration (FAA) required “route check.” During this period, the plaintiff believed that the pilot-in-command was unqualified to pilot an aircraft because he: (1) did not have the requisite jet time mandated by the FAA; (2) was unfamiliar with FAA mandated basic flight procedures; (3) did not properly proceed with the FAA mandated “pre-flight check list” safety measure; (4) was unfamiliar with the air space into which he was planning to fly; and (5) was unfamiliar with how to obtain departure clearance at certain airports. Based upon these observations, the plaintiff “reasonably believed” that if the employer permitted the pilot- in-command to fly, he would be endangering himself, the passengers, crew, the public and the aircraft. The plaintiff also believed that the pilot-in-command violated certain FAA regulations. On August 30, 2001, the plaintiff called his supervisor to stress his concerns. Hours later, the employer terminated plaintiff’s employment. The plaintiff alleges that the termination of his employment was in retaliation for the report of the pilot- in-command’s lack of qualifications as well as potential FAA violations. On April 29, 2002, the plaintiff filed a Complaint in the Superior Court of New Jersey alleging that his termination was in violation of CEPA. On May 29, 2002, the employer removed the case to the District of New Jersey and subsequently moved to dismiss plaintiff’s Complaint on the grounds that his CEPA claim was preempted by federal law. The District Court granted the employer’s motion to dismiss on August 8, 2002. The Third Circuit analyzed the issue as to whether the ADA, as amended by the WPP, preempted the employer’s CEPA claim. The Third Circuit reversed the dismissal of his CEPA claims and held that it was not preempted by the ADA. In support of its conclusion, the Third Circuit reasoned that language of the WPP was silent on the issue of preemption. CEPA is one of the most powerful whistleblower statutes in the country. It is understandable that the employer would want to attempt to dismiss the CEPA claim in favor of litigating this action pursuant to the ADA, which is probably a less-settled cause of action against an employer. This decision highlights the importance of an employer to enact proper policies to handle whistleblower- type complaints by employees. Stark & Stark attorneys can help you to develop policies and provide training that satisfy CEPA statutory requirements. More information regarding recent CEPA legislation and court decisions can be found here, here, here, and here.