United States: 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. While initially denying his actions, after the media began to cover the issue, the plaintiff admitted — at a subsequent internal meeting a week later — that he had contacted governmental agencies and the media.  

At trial, after the plaintiff closed his case, the defense moved to dismiss, arguing that the plaintiff failed to prove that he held an objectively reasonable belief that his employer "provided improper quality of care or violated a law or public policy" — the first required part of a statutory whistleblower claim in New Jersey. The only standards the plaintiff claimed his employer violated were in a code of ethics that he admitted did not apply to the nursing home. However, the trial court judge found that even though the code of ethics did not apply, the jury may nonetheless use it to glean whether there was improper health care or a violation of public policy. The court of appeals declared this ruling to be reversible error.  

Also, the appellate court criticized the trial judge for not providing the jurors with the statutory definition of "improper quality of patient care," and asked the committee that prepares model jury instructions to consider adding that definition to model instructions for CEPA claims. In addition, the court highlighted the need for identifying very specific authority in statutory whistleblower claims by explaining that the judge failed to instruct the jury as to what portion of the code of ethics allegedly had been violated. Reiterating existing law, the panel instructed that a judge should "enter judgment for a defendant when no such law or policy is forthcoming." Because the plaintiff failed to identify any law or applicable policy that he believed his employer had violated, his claim "should not have been submitted to the jury." Merely identifying some vague "authority does not alone provide adequate support for an objectively reasonable belief that a violation has occurred."  

Likewise, the appellate court found error in the trial judge instructing the jury that the defendant's internal code of conduct and residents' rights documents provided sources of law or public policy "that closely relate to the conduct about which [plaintiff] blew the whistle." Importantly, it found that such documents do not constitute "any law or any rule, regulation or declaratory ruling adopted pursuant to law or any professional code of ethics" under the whistleblower statute. The court found that the dispute between the plaintiff and his employer was simply a "difference of opinion" and that the plaintiff had not expressed an "objectively reasonable belief" that his employer's conduct was "incompatible with a clear mandate of public policy" where the plaintiff's opinion was based on the nursing code of ethics, the defendant's code of conduct and/or the defendant's statement of residents' rights.

Takeaways for the Defense  

Employers should welcome the fact that the Hitesman opinion was approved for publication. The official publicationof this decision allows defense counsel to cite thisopinion as legal authority when seeking to dismiss CEPAcomplaints arising in any industry in which the former employeelacked the requisite objectively reasonable belieftethered to a law or other source of public policy. As theappellate court explained, "A plaintiff cannot rely upon 'abroad-brush allegation of a threat to patients' safety[,]' becauseCEPA affords no protection for the employee whosimply disagrees with lawful policies, procedures or prioritiesof the employer."  

The opinion provides further needed support for employers who generally seek to have unsupported whistleblower claims dismissed as early possible — whether by rarely-granted motions to dismiss, motions for summary judgment or motions made at the close of the plaintiff's case. Hitesman may encourage more trial court judges to grant dismissal motions before CEPA cases reach the trial phase of litigation. While defense counsel often move for summary judgment in CEPA actions, the trial court rulings on such motions vary greatly.  

Alert employment defense counsel should also recognize that the appellate court provided guidance on drafting proper proposed jury instructions for trial and on objecting to unhelpful instructions so as to preserve such objections for appeal. Employment defense attorneys may use this case to illustrate to clients that even when CEPA cases reach verdict, New Jersey's appellate courts are willing to reverse decisions of the trial court judges and nullify verdicts when made contrary to the law and the evidence.  

Some of the impact of Hitesman may only be fleeting, however. Importantly, the questions of "reasonable belief" and other CEPA elements are now before the New Jersey Supreme Court through another case moving through the appellate process, Battaglia v. UPS, Inc. The expectation is that the Court will issue an opinion in that case by early Fall 2013, undoubtedly better shaping New Jersey whistleblower law. 

www.schnader.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions