Whistleblower Guidance from NJ Appellate Court May Help Employers Keep More CEPA Claims from Reaching a Jury


A plaintiff cannot succeed in whistleblower litigation against his former employer without demonstrating a specific, objectively reasonable belief that the employer violated a law or public policy, according to a recently published opinion of a New Jersey appellate court. New Jersey’s Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 to -8, provides, in part, that a licensed health care professional may assert a whistleblower claim against his employer if he possesses a “reasonable belief that the employer’s conduct ‘constitutes improper quality of patient care[.]’” Hitesman v. Bridgeway Inc., 2013 N.J. Super. LEXIS 44, A-0140-11T3 (App. Div. Mar. 22, 2013). The appellate court found in favor of the employer and dismissed this case (reversing the rulings of the trial court and vacating a jury verdict), in finding that the plaintiff was not entitled to whistleblower protection under CEPA because he relied on a code of ethics that applied to him as a nurse, but not specifically to his former employer, a long-term care nursing home facility. By pointing out multiple errors committed by the trial court, the appellate court offered specific guidance to (1) trial judges who are often asked to dismiss similar lawsuits at various stages of litigation and (2) defense counsel who seek to prevent these types of cases from reaching juries or overturn adverse rulings on appeal.

In Hitesman, the plaintiff was discharged after he anonymously contacted governmental agencies and the media to report his concerns regarding what he believed was an “inordinate rate of infection among patients” and released to the media confidential administrative logs, which his employer asserted violated HIPAA, 42 U.S.C. §§ 1320d-1 to -9. The plaintiff had also raised the same concerns internally, so when the New Jersey Department of Health and Social Services contacted the nursing home facility, the administrators asked the plaintiff whether he had contacted the state authorities....

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