New Jersey Archives - Page 7 of 8

Whistleblowing May Not Be Limited to Claims About Employer Wrongdoing in New Jersey

The New Jersey Conscientious Employee Protection Act (“CEPA”) was designed to protect whistleblowing employees who have the courage to stand up to illegal or wrongful conduct by their employer. As the courts have consistently held, the initial focus in a typical CEPA case is on the whistleblower’s prima facie case burden to establish that he/she had an objectively reasonable basis to believe that the employer did something wrong by either violating a law or engaging in conduct incompatible with a clear mandate of public policy.

In an unreported opinion issued in March 2013, however, the United States District Court for the District of New Jersey found that CEPA can be implicated even where there is no claim or contention that the employer did anything wrong. In Stapleton v. DSW, Inc. (2013 U.S. Dist. LEXIS 38502), the plaintiff employee believed that a store customer was mistreating her young child by, among other things, not changing her dirty diaper, and decided to “blow the whistle” on the customer by turning her in to the New Jersey Division of Child Protection and Permanency (the “Division”) out of concern for the child’s health and wellbeing. The plaintiff employee gave the customer’s name and address to the Division after obtaining that information from the customer’s transaction with the store. In doing so, the plaintiff violated the company’s perfectly lawful policy prohibiting the unauthorized disclosure of confidential customer information. When the employer learned of what had happened, it discharged the plaintiff for violating its non-disclosure policy, and she filed suit under CEPA.

Not surprisingly, the company moved to dismiss the lawsuit on the grounds that the plaintiff was not a protected “whistleblower” because she did not allege that the company had done anything wrong or illegal. Indeed, the plaintiff had blown the whistle on the customer, not the company. This is where it gets interesting. In denying the company’s motion, the District Court noted that CEPA not only protects employees who object to illegal activity, but also those who refuse to follow a policy or practice which they reasonably believe is incompatible with a clear mandate of public policy. Unlike most CEPA cases, the court in Stapleton focused on the conduct of the employee – not the employer – and concluded that she was protected under CEPA by virtue of the fact that she acted pursuant to the public policy that encourages individuals to report child abuse. In this circumstance, the court determined that the company’s policy prohibiting the disclosure of the customer’s identity was incompatible with the State’s clear mandate to protect the health and welfare of children, and that the plaintiff was therefore engaged in protected “whistleblowing” under CEPA when she refused to “participate in” or follow that policy in order to help the Division identify the customer.

While the court’s CEPA analysis is subject to debate – there was no allegation that the employer had engaged in wrongful or illegal conduct – the plaintiff would appear to have a claim for wrongful discharge in violation of public policy where the New Jersey Child Protection Law provides immunity to employees reporting child abuse, and the New Jersey courts have held that employer policies on confidentiality must yield to matters of child safety. Nevertheless, this opinion should serve as a caution to employers and counsel alike that the courts often take an expansive view of the protections provided under CEPA.

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 CEPA, the court in Hitesman found that the plaintiff had failed to proffer facts that would support an objectively reasonable belief that a violation of law or clear mandate of public policy by his employer had occurred. The Appellate Division concluded that the plaintiff’s reliance on the American Nursing Association’s Code of Ethics (“Code”), his employer’s Employee Handbook and a Statement of Residents’ Rights, was misplaced because none of these documents constituted a source of law or public policy closely related to the conduct about which the plaintiff claimed he had blown the whistle. While the section of the Code relied upon by the plaintiff provided guidance as to whether he had acted in compliance with the Code in expressing his concerns, nothing in the Code established any standards regarding patient care. As a result, the court held that the plaintiff’s belief that his employer had acted in violation of the Code was not objectively reasonable as a matter of law.

The court in Hitesman also concluded that “generalized statements” in the employer’s Employee Handbook about a commitment to “the best quality of health care” and requirements that its employees comply with all applicable statutes, regulations and ethical standards were “far too vague” to provide a “high degree of public certitude in respect of acceptable versus unacceptable conduct.” Thus, an employee’s reliance on generalized statements that the employer and its employees will comply with the law will not support a CEPA claim.

All too often, plaintiffs in CEPA cases cite a litany of broad and generalized legislative, ethical rule or code of conduct statements to challenge management decisions. Do not let a plaintiff get away with the “throw everything at the wall to see what sticks” approach in CEPA cases. Hitesman and Dzwonar require trial courts to engage in a rigorous analysis to determine whether the plaintiff had, as a matter of law, an objectively reasonable belief that the complained-of conduct violated a law or public policy. Because CEPA does not shield a complainer who simply disagrees with an employer’s course of lawful conduct, close scrutiny of the complained-of conduct by the trial court is essential. As the court in Hitesman explained, it is “not enough for an employee to rest upon a sincerely held – and perhaps even correct – belief that the employer has failed to follow the most appropriate course of action, even when patient safety is involved.” Instead, the employee must have an objectively reasonable belief that a violation of relevant legal authority occurred.

New Jersey Employers Required to Post and Distribute Notice of Gender Pay Equality

On September 21, 2012, New Jersey’s Governor Chris Christie signed Assembly Bill No. 2647 (A-2647) into law, supplementing the New Jersey Equal Pay Act which will take effect on November 19, 2012, and applies to all New Jersey employers with 50 or more employees. A-2647 imposes several new obligations on employers, who must conspicuously post the notification in an accessible and conspicuous place in English, Spanish and any other language spoken by 10% of the workforce within 30 days of the time the Commissioner first issues the form notice.

The notice must detail employees’ rights to be free of gender inequity or bias in pay, compensation, benefits or other terms and conditions of employment. In addition, the notice must be given to new employees upon hire and to any employee upon request. Employers must redistribute the notice annually and obtain a written acknowledgment that the employee has read and understood the notice. Distribution of the notice may be made by paper or electronically via email or a website, “if the site is for the exclusive use of all workers, can be accessed by all workers, and the employer provides notice to the workers of its posting.”

However, the law does not require posting or distribution on the effective date, November 19, 2012, or even within 30 days of the effective date. The posting and distribution requirements will not be triggered until the Commissioner of Labor and Workforce Development issues the notification by regulation, the notice has passed through the regulatory approval process and is published in the New Jersey Register. This process will likely take several months.

New Jersey Appellate Court “Renews” Recommendation that Model Jury Charge For Failure-to-Accommodate Cases Is Needed

In Whalen v. New Jersey Manufacturers Insurance Company, Docket No. A-3155-09T4 (N.J. App. Div. August 6, 2012), the Appellate Division, in an unpublished per curiam decision (click here to read), found no reversible error in a jury charge that did not differentiate between the two distinct theories of disparate treatment and failure to accommodate. The plaintiff, a former project coordinator in NJM’s information technology department, claimed the trial judge had failed to separately charge her disparate treatment and failure-to-accommodate claims. Plaintiff had Lyme’s disease, and flare ups with her disease required her to go on short-term disability, reducing her schedule from full-time (five days a week/40 hours) to less than full-time (four days a week/32 hours). Plaintiff did not qualify for long-term disability, and there was a dispute as to whether Plaintiff had requested to work on a permanent basis on a reduced work schedule of four days per week or whether working full-time was an essential function of her job. Based on an examination of both the responsibilities of the position itself and the plaintiff’s performance, NJM concluded that the plaintiff’s job required 40 hours of work per week, that she could not perform the essential functions of her job working less than 40 hours per week, and thus terminated her for this reason.

Ms. Whalen sued NJM for disability discrimination and unlawful termination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The case went to trial. At the close of all the evidence, the parties “engaged in an extensive discussion regarding the jury charge.” Although the plaintiff did not voice any objections after the charge was given (per Rule 1:7-2), she claimed plain error on appeal after the jury returned a defense verdict, contending the trial judge had failed to instruct the jury about the impact of the interactive process on the failure to accommodate theory of liability.

The jury was instructed on the three elements of a disability discrimination claim under LAD, the definition of the term “essential function of the job,” the four elements to consider in determining whether NJM had engaged in the interactive process, and the meaning of a “reasonable accommodation.” The panel concluded that although “the better practice” would have been to charge separately the disparate treatment and failure-to-accommodate claims, the jury had more than sufficient facts to assess the issue of the interactive process as well as the ultimate issue – whether the plaintiff could perform the essential functions of her job. Nevertheless, the panel “renewed” its recommendation that the Committee on Civil Jury Charges develop a separate failure-to-accommodate charge, stating that “[t]he addition of such a charge would be consistent with federal practice” (citing the Third Circuit’s model charge Section 9.1.2 and 9.1.3 for disparate treatment and failure-to-accommodate claims under the ADA).

Take away: until New Jersey’s Committee on Civil Jury Charges develops a separate failure-to-accommodate jury instruction, when faced with crafting jury charges in failure-to-accommodate disability discrimination cases, practioners should be guided by the courts’ direction and holdings in Whalen v. NJM (attached); Victor v. State, 401 N.J. Super. 516 (App. Div. 2008), aff’d in part and modified in part, 203 N.J. 383 (2010); Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385 (App. Div. 2002); and Viscik v. Fowler Equip. Co., 173 N.J. 1 (2002).

New Jersey District Court Allows Plaintiff to Proceed to Trial on Claim of Unlawful Discharge, Dismisses Claims of Handicap and Discrimination

The New Jersey District Court in St. Cyr v. Brandywine Senior Living LLC, recently granted summary judgment to the employer dismissing the plaintiff’s causes of action for handicap and race discrimination, but allowed the plaintiff to go to trial on her claim that she was unlawfully discharged in violation of the FMLA in retaliation for asking for a medical leave of absence because she was fired only two days before the leave of absence was to begin. In granting summary judgment on the claim of handicap discrimination, the court determined that the plaintiff, who suffered from arthritis, was not “handicapped” under the NJLAD because the condition, which was alleviated with medication, did not interfere with her ability to perform her job, and because she never asked for an accommodation for the condition. The court rejected her claim of race discrimination based on her admission that the only evidence implicating racial animus was the fact that she was fired for watching the BET Network on television during working hours. The court noted that the plaintiff, who had previously been placed on probation for poor performance and was on final warning, was replaced by an African American employee and had failed to show the legitimate reason given for her discharge was pretextual. Despite that finding, however, and despite the fact that the employer had granted the plaintiff’s request for a medical leave of absence, the court denied summary judgment on the claim of retaliatory discharge under the FMLA based only on the determination that the timing of the discharge – only two days before her FMLA leave was to begin – was “unusually suggestive” of retaliatory motivation. The court did not explain how the timing could be suspect if that was when the plaintiff was found watching television instead of doing her job, and if there was no evidence that the proffered reason was pretextual.

New Jersey District Court Denies Employer’s Motion to Dismiss Plaintiff’s Cause of Action After Employee’s Supervisor Gains Unauthorized Access to Employee’s Facebook Account

In Ehling v. Monmouth-Ocean Hospital Service Corp., the District Court in New Jersey recently denied the employer’s motion to dismiss the plaintiff’s cause of action for invasion of privacy in connection with a supervisor having gained unauthorized access to her private Facebook account. The plaintiff nurse, who was also the union president at the hospital, had posted comments on her Facebook wall about the news story out of Washington, D.C. in 2009 concerning the killing of a security guard at the Holocaust Museum by a white supremacist in which she expressed her opinion or rant that the paramedics in D.C. should have let the shooter die rather than help him after he was shot during the incident: “He survived [and] I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards…. go to target practice.” The supervisor apparently wanted access to plaintiff’s Facebook comments because of her leadership role with the union, and convinced a co-worker to give him access to her private account so he could copy her postings. When he saw the comments about the D.C. incident he sent a copy to the State Board of Nursing suggesting that it represented an improper disregard for patient safety.

On the employer’s motion to dismiss the invasion of privacy claim on the grounds that there can be no expectation of privacy with respect to Facebook postings, the court decided that the question whether the plaintiff had a reasonable expectation of privacy was for a jury to decide based on the circumstances, including the number of “friends” who had access to her Facebook wall where the plaintiff claimed that she had restricted access to her friends but did not provide access to any supervisors or members of management. The court did not address the separate question whether a rant expressing an opinion about a news report could be considered an expression of one’s “private affairs” subject to protection under invasion of privacy law, and did not address the fact that Facebook specifically includes in its Privacy Policy a disclaimer to the effect that there is no guarantee of privacy and that users make postings at their own risk inasmuch as anyone with access can copy or share comments with anyone they choose.