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In a 5-1 ruling, the New Jersey Supreme Court affirmed the Appellate Division’s ruling that a nurse who claimed that he was fired for blowing the whistle on alleged improper patient care could not rely on a nurse’s professional code of ethics as the basis of his retaliation claim because those standards do not apply to his employer, an operator of a nursing home. Hitesman v. Bridgeway, Inc., ___ WL ___ (June 16, 2014)).

Plaintiff James Hitesman, who worked as a staff nurse in a nursing home operated by Bridgeway, Inc., asserted that Bridgeway violated the Conscientious Employee Protection Act (CEPA) in terminating his employment. Hitesman reasoned that Bridgeway failed to follow the American Nursing Association’s Code of Ethics (ANA Code) and two Bridgeway policy documents as they related to Bridgeway’s control of infectious disease. At trial, the jury returned a verdict for plaintiff but awarded no damages. Both parties appealed.

In affirming the Appellate Court’s decision that the trial court should have granted Bridgeway’s motion to dismiss, the court held that “claims asserted under [CEPA’s] ‘improper quality of patient care’ provision must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct in the employer’s delivery of patient care [… and] that a plaintiff asserting that his or her employer’s conduct is incompatible with a ‘clear mandate of public policy concerning the public health’ must, at a minimum, identify authority that applies to the ‘activity, policy or practice’ of the employer.”

Based on the Hitesman decision, employers faced with whistleblower claims under CEPA should determine whether the plaintiff has asserted the proper standard that applies to the employer and the complained of conduct as they evaluate whether they can avoid litigation costs by moving to dismiss such claims.