When the Appellate Division decided Hitesman v. Bridgeway Inc., 430 N.J. Super. 198 (App. Div. 2013), it represented an important clarification of the limits to which an employee in the health care sector could point to amorphous standards as part of an “objectively reasonable basis” for making a whistleblower claim under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. A new unpublished decision of the Appellate Division shows how Hitesman is already making is mark, even while that case remains before the N.J. Supreme Court which has yet to weigh in on whether it agreed with the Appellate Division’s thinking on this score.

Hitesman squarely addresses the question of whether an employer handbook and internal employer materials can serve as the source of law at the heart of a claim under CEPA. The lower court in Hitesman permitted the employee to get his case to a jury, in which the employee claimed that certain vague provisions in the nursing code of ethics, employer handbook, and patient bill of rights, were the source of his complaints to outside agencies, and formed a proper basis for CEPA liability. The Court reversed the jury’s determination on liability and squarely held that these could not serve as the source for an objectively reasonable belief of a violation of law under CEPA. 430 N.J. at 219.

The New Jersey Supreme Court granted certification and the appeal was argued on November 18, 2013. A decision is imminent.

In Gibson v. 11 History Lane Operating Co., 2014 WL 700124 (N.J. Super. Ct. App. Div. Feb. 25, 2014), the court faced a similar claim by a nurse claiming to have blown the whistle about an allegedly improper employer policy in the health care industry. Margaret Gibson, a licensed practical nurse, claimed to have blown the whistle on her employer’s allegedly improper policy of requiring evening shift nurses to correct physicians’ orders in medical charts during their shifts for daytime nurses who might have incorrectly charted the physicians’ orders. The nurse in question objected to the policy of the employer for her to transcribe another nurse’s telephonic physicians’ order, into other treatment documents, as she believed there might be an error in the original transcription which she would then be carrying forward in the treatment records. Id. *4.

The employee refused to comply with the policy and even called the NJ Board of Nursing, who allegedly agreed with her that there was some risk in transcribing the order and recommended against the practice. Thereafter, she was terminated for, among other things, her refusal to comply with the policy and alleged medication errors. Id. * 9.

The trial court granted the employer summary judgment on the CEPA and Pierce claim. Relying on Hitesman, the Appellate Division affirmed. The court ruled that vague claims of purported violations of nursing standards, or concerns over general patient safety if an employer’s policy are followed, are not sufficient to overcome summary judgment in a CEPA case The court rejected the notion that a nurse can recover under CEPA by pointing to the Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25 and general concerns for public safety. Rather, an employee must point to an objectively reasonable basis for believing that a specific statute or rule was being violated, or that there was a threat of “public harm, not merely private harm or harm only to the aggrieved employee.” Id. * 18.

Hitesman and Gibson point out the dangers to employers where employees are permitted to point to vague nursing codes of ethics or other amorphous standards to sustain a CEPA claim. Hopefully the NJ Supreme Court will weigh in on this important area of the law.