New Jersey whistleblowers are protected under the Conscientious Employee Protection Act, or “CEPA”. Very generally speaking, CEPA prohibits an employer from retaliating against an employee for complaining, disclosing, or objecting to workplace conduct that the employee reasonably believes:
- Violates a law or regulation;
- Is fraudulent or criminal; or
- Is incompatible with a clear mandate of public policy concerning the public health, safety or welfare.
Under this standard, an employee who can cite to a statute that specifically prohibits the conduct to which he objects falls squarely within CEPA’s protections. For instance, a restaurant manager who protests when his boss directs him not to record cash transactions can claim that his boss is plainly skirting the provisions of the NJ and federal tax codes.
But what about an employee who can’t cite to a law specifically prohibiting his employer’s conduct? For example, a butcher may believe his meat department supervisor is putting incorrect “sell-by” dates on merchandise, thereby exposing customers to tainted meat. However, he cannot point to a statute or regulation that specifically addresses expiration dates for packaged meat.
Such an employee has recourse to CEPA’s “public policy” protection. In other words, he can still maintain a CEPA claim if he can show that his employer violated a “clear mandate of public policy”.
Clear Mandate of Public Policy
So what is, exactly, a “clear mandate of public policy”? For example, is it enough to simply allege that an employer generally put customer health and well-being at risk? No. As a recent New Jersey Supreme Court decision illustrates, even employees claiming a public policy violation need to cite to some kind of law, coded authority or standard that expresses such a “mandate”, in order to sustain a CEPA claim.
In Hitesman v. Bridgeway, Inc., 218 N.J. 8 (2014), the plaintiff was an RN at a nursing home. In his capacity as shift supervisor, he noticed that several staff had missed work due to respiratory and gastrointestinal illness. Moreover, he noticed similar symptoms among at least fifty, or approximately one-third, of patients. Accordingly, the plaintiff complained about the prevalence of this illness to his nursing director, who responded that it could be spread via contact and recommended hand-washing. The plaintiff, however, demanded that the nursing director explain how she determined that the illness was in fact spread by contact, and asked whether any testing had occurred. He further directed staff not only regarding hand-washing, but on the use of gloves, goggles, masks and hospital gowns to avoid transmission.
Ultimately, unsatisfied that the nursing home was doing its utmost to take preventative measures against patient infection, the plaintiff contacted municipal, county, and state health authorities to complain. After a patient with gastrointestinal symptoms was hospitalized and then died, the plaintiff contacted a local news station. The nursing home subsequently terminated him, for the stated reason that his disclosures to outside agencies and media violated the home’s confidentiality policy, as well as HIPAA.
The plaintiff sued, claiming, in part, that he was fired because the nursing home’s lax sanitization standards violated a “clear mandate of public policy” under CEPA. Plaintiff argued that the “clear mandate” in question was expressed in, among other things, Section 3.5 of the American Nursing Association code, which states in part:
“The nurse’s primary commitment is to the health, well-being and safety of the patient . . . As an advocate for the patient, the nurse must be alert to and take appropriate action regarding any instances of incompetent . . . or impaired practice by any member of the health care team or the health care system . . . that places the rights or best interests of the patient in jeopardy. . . When the nurse is aware of inappropriate or questionable practice in the provision or denial of health care, concern should be expressed to the person carrying out the questionable practice . . . [as well as] to the responsible administrator. If indicated, the problem should be reported to . . . an appropriate external authority.”
In considering his case, the NJ Supreme Court noted that a “clear mandate” of public policy “need not be enacted in a constitution, statute or rule, but must nonetheless provide a definite standard by which the employer’s conduct may be gauged” (emphasis added). Further, in reviewing New Jersey CEPA caselaw, the court found that laws, regulations, or other authorities expressing a “clear mandate” identified specific acceptable and unacceptable conduct in the employer’s business, as opposed to vague or general pronouncements on “best practices”.
Using this reasoning, the court concluded the plaintiff’s CEPA claim failed, as the ANA code merely expressed the nursing profession’s commitment to overall patient care, rather than specific protocol for controlling infection: “The ANA code includes no general standard for infection control in a nursing home, much less specific direction on how [this nursing home] should have treated its patients’ illnesses . . . Nor does the ANA Code prescribe for [the nursing home] a ‘readily discernible course of action that is recognized to be in the public interest,’ from which we can discern a ‘clear mandate of public policy’.”
When should you blow the whistle?
Given the Hitesman decision, New Jersey whistleblowers relying on the “public policy” provision of CEPA should proceed with caution. To claim an employer violated a “clear mandate of public policy”, you must be able to show that the employer failed to meet an objective standard that is articulated in a law, regulation, or other written authority. The butcher we discussed previously, for example, could claim that putting overdue “sell-by” dates on meat violated guidelines promulgated by the federal government to ensure meat freshness.
In contrast, it is much more difficult, if not impossible, to argue a “public policy” violation when you rely upon:
- Vague, over-arching, or aspirational standards, such as those sometimes found in professional organization codes;
- Any authority that proscribes conduct without specifically defining it;
- Any authority with subjective standards that are open to interpretation or differences of opinion.
Zatuchni & Associates (https://goo.gl/maps/TRR34X29VzRCNM3g7) specializes in discrimination claims across all protected categories. We’ve helped countless clients who have suffered workplace bias secure financial and legal compensation from their employers. If you believe you have a potential whistleblower claim and would like to discuss your options with an attorney, contact our experienced employment lawyers online or call 609-243-0300 today for a free consultation. Our attorneys represent New Jersey and New York employees.