New Jersey Supreme Court Upholds Termination of Whistleblowing RN, Confirming Narrow Reading of CEPA

In Hitesman v. Bridgeway, Inc., A-73-12 (June 16, 2014), a registered nurse was fired after he complained to management about the rate of infectious diseases among patients, reported his concerns to governmental agencies, and disclosed partially-redacted records of patient care to a television reporter. He filed a whistleblower suit under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, claiming that his complaints of improper patient care were supported by the American Nursing Association (ANA) Code of Ethics, the defendant’s employee handbook, and the defendant’s Statement of Resident rights.

In its June 16, 2014 opinion rejecting the plaintiff’s claims, the New Jersey Supreme Court concluded that the plaintiff did not demonstrate an objectively reasonable belief that the defendant’s conduct gave rise to an improper quality of patient care or was incompatible with a clear mandate of public policy concerning the public health. The Court explained that claims asserted under CEPA’s “improper quality of patient care” provision, N.J.S.A. 34:19-3(a)(1) and (c)(1), must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable conduct in the employer's delivery of patient care. Further, a plaintiff asserting that his or her employer’s conduct is incompatible with a clear mandate of public policy concerning the public health, N.J.S.A. 34:19-3(c)(3), must, at a minimum, identify authority that applies to the activity, policy, or practice of the employer. Applied here, the Court found that the authorities invoked by the plaintiff provided no standard for his employer’s control of infectious disease, did not define acceptable patient care, and did not state a clear mandate of public policy. The Court thus concluded the plaintiff could not demonstrate an objectively reasonable belief that his employer’s conduct constituted improper patient care or violated public policy concerning the public health.

Note: This article was also published in the July 17, 2014 issue of the New Jersey eAuthority


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