NJ Supreme Court Reaffirms Standard for CEPA Claims

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New Jersey’s Conscientious Employee Protection Act (“CEPA”), protects and encourages employees to report illegal or unethical workplace activities without threat of retaliation by the employer. On June 16, 2014, the Supreme Court of New Jersey issued a landmark opinion involving the CEPA.  In Hitesman v. Bridgeway, Inc., the Court found that the plaintiff’s CEPA claim failed because he could not point to a binding source of public policy under which he could receive whistleblower protection.

The plaintiff was a nurse at a nursing home who claimed he was fired for blowing the whistle over improper patient care at the nursing facility. Specifically, he claimed that, pursuant to the American Nursing Association Code of Ethics (“ANA Code”), he reported a rash of gastrointestinal and respiratory infections that broke out among the nursing home’s patients. The plaintiff disagreed with the manner in which the outbreak was handled. As a result of the report, he was retaliated against and terminated.

The Court, in affirming the Appellate Division’s decision, held that the ANA Code “does not constitute a source of law or other authority” that establishes standards for infection control at nursing homes.  It reasoned that claims asserted under CEPA’s “improper quality of patient care” provision must be premised on a “reasonable belief” that an employer has violated a rule, law, declaratory ruling adopted pursuant to law, regulation, or professional code of ethics governing the profession or delineating between acceptable and unacceptable conduct for the employer in question. 

In order to assert that an employer’s conduct is incompatible with a “clear mandate of public policy concerning the public health,” the employee must be able to cite to authority that governs the standards for the employer’s conduct.  The ANA Code does not govern the standards for a nursing home’s conduct and, therefore, cannot serve as the source of authority for a CEPA claim.  Instead, the ANA Code “directs a nurse’s action in response to deficient patient care in a nursing home, but provides no standard by which such a deficiency can be ascertained.”

The Hitesman decision is significant insofar as the New Jersey Supreme Court reaffirmed that in order for an employee to have a viable CEPA claim regarding improper quality of patient care or conduct incompatible with a clear mandate of public policy the employee’s complaints must actually implicate an activity, policy or practice of the employer. Also, and the employee is required to present evidence to support a substantial connection between the adverse employment action he or she is  complaining of and the employee’s alleged whistleblowing activity.