CEPA Roundup - July 2014

In recent weeks, New Jersey's primary whistleblower statute—the Conscientious Employee Protection Act ("CEPA")—has been the subject of increased judicial scrutiny.

In Hitesman v. Bridgeway, Inc., 214 N.J. 235 (2014), the New Jersey Supreme Court held that, to assert a claim for retaliation under CEPA based on complaints concerning "improper quality of patient care" or conduct "incompatible with a clear mandate of public policy concerning the public health," a plaintiff must, at a minimum, identify a source of law or other authority that sets forth a standard from which to determine whether there was a reasonable belief the employer engaged in the alleged misconduct.

In Stark v. South Jersey Transit Authority, No. A-1758-11T2, 2014 N.J. Super. Unpub. LEXIS 1150 (App. Div. May 21, 2014), the Appellate Division held (i) that the plaintiffs' illegal recording of a private conversation did not constitute protected activity under CEPA or the Law Against Discrimination ("LAD"), and (ii) that the plaintiffs could not otherwise use the recording as evidence for it was obtained in a manner that violated state wiretapping law and that failed to satisfy the mitigating factors articulated in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010) (for more on Quinlan, see our prior alert).

In Lippman v. Ethicon, 217 N.J. 292 (2014), the state Supreme Court granted certification on the issue of whether a "watchdog" employee qualifies as a whistleblower under CEPA by performing the tasks and functions of the job for which he or she was hired.

This post summarizes these three cases and examines their implications for New Jersey employers.

Hitesman v. Bridgeway, Inc.

Background & Holding

James Hitesman ("Hitesman") worked as a registered nurse for a nursing home operated by Bridgeway, Inc. ("Bridgeway"). Hitesman was terminated after he complained to the facility's management about the rate of infectious diseases among patients, anonymously contacted government agencies and the press to report those concerns, and released partially-redacted patient records to a television reporter, in violation of Bridgeway's confidentiality policy and the Health Insurance Portability and Accountability Act ("HIPAA").

Hitesman filed suit under CEPA alleging that Bridgeway had retaliated against him for complaining about conduct that he "reasonably believed" constituted "improper quality of patient care" and was "incompatible with a clear mandate of public policy concerning the...