Employee’s Objection Must Relate to Violation of Measurable Standard to be Protected by CEPA

On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

Mr. Hitesman won his retaliation case at a trial, but the jury did not award him any damages. He appealed, asking for a new trial on damages. Bridgeway also appealed, arguing Mr. Hitesman’s objections were not protected by CEPA. The Appellate Division agreed with the company, finding Mr. Hitesman did not have an objectively reasonable belief that its actions either constituted improper quality of patient care or were incompatible with a clear mandate of public policy.

In Hitesman v. Bridgeway, Inc., the New Jersey Supreme Court affirmed the dismissal of Mr. Hitesman’s case. To win a CEPA case, an employee has to identify a law, rule, regulation, clear mandate of public policy, or professional code of ethics that has a close enough connection (“substantial nexus”) to the objection or complaint the employee alleges caused the company to retaliate. In Hitesman the Supreme Court ruled the employee’s objection must indicate that the employer violated a standard against which the employer can measure its conduct. For instance, it is not enough to complain that the employer should have done something safer, healthier, or better for the environment. Rather, an employee must object believe the employer was required to do something it failed to do, or was prohibited from doing something it did do.

Mr. Hitesman argued his objections were protected by CEPA because he reasonably believed the nursing home violated the American Nursing Association (ANA) Code of Ethics. The Court agreed a medical ethical code like the ANA Code can be the source for a standard of patient care under CEPA. However, it found the ANA Code did not protect Mr. Hitesman because it does not include any specific requirements for hospitals to control the spread of infection. Rather, it sets general goals and requirements for nurses, such as being committed “to the health, well-being, and safety” of patients, and taking “appropriate action regarding any instances of incompetent, unethical, illegal, or impaired practice by any member of the health care team or the health care system.”

Mr. Hitesman also argued based on the fact that Bridgeway’s Employee Handbook required him to comply with the ANA Code. However, the Court ruled that the handbook did not include any specific standards or requirements regarding nursing homes controlling the spread of infectious disease. Accordingly, it found the handbook could not provide a basis to bring Mr. Hitesman’s objections within the scope of CEPA’s protection.