Blowing The Wrong Whistle – Close Scrutiny Of Code Of Ethics Dooms Nurse’s Lawsuit Under New Jersey’s Whistleblower Statute

New Jersey's Conscientious Employee Protection Act (CEPA) is remedial legislation designed to protect employees who "blow the whistle" on illegal or unethical activity committed by their employers or co-workers. To be sure, CEPA is a powerful anti-retaliation statute, providing an array of significant remedies to an aggrieved party. However, as the saying goes, with great power comes great responsibility. A recent decision by the Appellate Division, Hitesman v. Bridgeway, Inc. (decided March 22, 2013), highlights the important gatekeeping functions of trial courts in CEPA cases. Click here for a copy of Hitesman. http://www.judiciary.state.nj.us/opinions/a0140-11.pdf.

Not every employee who "blows a whistle" is a "whistleblower" subject to the protections of CEPA. An employee who lacks an objectively reasonable belief that his or her employer's conduct violated a law or public policy or constituted improper quality of patient care cannot, as a matter of law, sustain a viable claim under CEPA. The Supreme Court in Dzwonar v. McDevitt, 177 N.J. 451 (2003) provided the legal framework for trial courts to use to separate the proverbial wheat from the chaff in most CEPA cases. First, the trial court must identify a law, rule, or regulation promulgated pursuant to a law or a clear mandate of public policy, that the plaintiff believed was violated by the employer's conduct. Next, the court must determine whether there is a "substantial nexus between the complained-of conduct and [the] law or public policy identified by the court or the plaintiff." If the trial court so finds, the jury then must determine whether the plaintiff "actually held a belief and, if so, whether that belief was objectively reasonable."

In Hitesman, the plaintiff, a nurse who worked at a long-term nursing home facility, disclosed to government regulators "practices of Defendant that he reasonably believed constituted improper quality of patient care and violations of his professional code of ethics." He sued under CEPA after he was fired for admittedly violating the defendant's confidentiality policy (improper disclosure of patient information). The trial court allowed the plaintiff's CEPA claim to proceed to a jury trial, and the jury found in the plaintiff's favor on liability. However, on appeal the Appellate Division reversed the jury's verdict.

Applying the analytical framework in Dzwonar for determining whether the plaintiff has established a prima facie case under...