New Jersey Appeals Court Clarifies Identification of Violated Regulations Required under Whistleblower Law

Background

John Sloan was an employee of Cape Regional Medical Center and Cape Regional Health System, Inc. (collectively “Cape”), from February 2018 until October 2020, serving as director of plant operations.  His duties included making sure that the facility’s maintenance, repair and safety systems were in compliance with their legal requirements.

Sloan made complaints to his supervisors that defendants had not complied with fire-safety regulations by failing to inspect fires extinguishers, exit lights and sprinkler systems (the “fire complaints”), particularly during the increased patient load and decreased staffing caused by Covid.  He also complained about the temperature and humidity levels in the operating rooms and electrical work in the sewage ejector pit (“the safety complaints”).  He alleged that he was told to ignore the violations and threatened with discipline if he did not, and that he was yelled at and false accusations were made about his work performance.  Eventually he was fired on October 16, 2020.  He claimed that he was terminated in retaliation for his complaints about the defendants’ legal and regulatory violations.

 

Sloan’s Lawsuit

Sloan sued Cape and several managers and decision makers in the Law Division of the Superior Court of New Jersey, alleging that they violated the New Jersey Conscientious Employee Protection Act (known as “CEPA”), which is New Jersey’s whistleblower law.

During discovery in the ongoing litigation, Sloan identified the regulations which underlay his complaints about the safety complaints, but not about the fire complaints.  Since CEPA requires an employee suing his employer under the Whistleblower Law to identify the specific laws or regulations he claims were violated, the judge dismissed his case on summary judgment.

Sloan appealed to the Appellate Division of the Superior Court.

 

The Appellate Decision

The Appellate Division reversed in part and affirmed in part in a decision in Sloan v. Cape Regional Medical Center, et al.

The Appellate Division explained that

The Legislature enacted CEPA to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. [CEPA] protects workers who blow the whistle on their employers’ illegal, fraudulent, or otherwise improper activities that implicate the health, safety, and welfare of the public. The statute shields an employee who objects to, or reports, employer conduct that the employee reasonably believes to contravene the legal and ethical standards that govern the employer’s activities.

To establish a prima facie CEPA claim, [an employee] must demonstrate that:

(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;

(2) he or she performed a “whistle-blowing” activity described in [N.J.S.A. 34:19-3(a) or (c)];

(3) an adverse employment action was taken against him or her; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

The Court then explained that in order to meet the first requirement – that “he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy” – the employee must specifically identify the law, rule, regulation or the clear mandate of public policy which he “reasonably believed” the complained of action violated.  He can’t just disagree with what the employer was doing.

Because the Law Division judge ruled on the first part of the test because he reasoned that Sloan had not properly identified the specific law, rule, regulation or public policy, the Appellate Division reversed.  It agreed that Sloan had not identified the specific law which governed his fire complaints and allowed the dismissal of those claims to stand.  However, because Sloan had identified the regulations which underlay his safety complaints, the Appellate Division remanded the case to the Law Division for a trial on retaliation for those complaints claims only.

The Appellate Division explained that the vague references Sloan made to the fire complaints violating unspecified provisions of the National Fire Protection Association regulations was insufficient because “[T]he NFPA develops roughly 300 codes and standards.”  This was simply too vague for the court to be able to identify which regulations he alleged were violated. While the employee need not be aware of the specific regulation at the time he made the complaint, he must identify them in litigation sufficiently for the court to understand what the employee believed was being violated to determine if his belief was “reasonable.”

 

The Takeaway

New Jersey employment law does not require that an employee know which particular regulation is being violated at the time he makes a complaint to be covered by the Whistleblower Law.  However, New Jersey employment law does require that he must sufficiently identify them during litigation for the court to be able to understand what he claimed was being violated to determine if the complaint is protected.  Moreover, the regulation need not have actually been violated, provided the employee can show that he had a reasonable belief that it was.

 

Contact Us

Our New Jersey employment lawyers represent employees and employers in all aspects of New Jersey employment law.  Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey employment attorneys.  We can help.