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NEW JERSEY APPELLATE COURT CLOSES THE DOOR ON NURSE’S WHISTLEBLOWER CLAIM

A New Jersey nurse was fired from her position at a long-term senior care facility for whistleblower activity. Nurse Jane objected to and refused to adhere to her employer’s practice of requiring nurses in her position to record any physician’s orders from the physician’s log book into the corresponding patient’s log book in case another nurse had failed to record a matching entry into the corresponding patient’s log book. Jane objected to this practice because if the initial nurse who made the recording into the physician’s log book (but failed to record in the patient’s log book) had made an inaccurate recording in the physician’s log book, then Nurse Jane could be recording the wrong medication or treatment prescribed into the patient’s log book. If such a mistake were made, it would be she whom the blame would be imputed to, and not the nurse who originally made the mistake. Such a mistake could result in the whistleblower nurse having her nurse’s license revoked by the NJ Board of Nursing.

Fearing losing her license, Jane contacted the Board of Nursing to determine whether or not she is required to abide by such a policy. The Board said she could follow the practice of filling in another nurse’s missing entries, but only so long as she was willing to put her nurse’s license on the line. Refusing to take such a risk, she continued to refuse to record other nurses’ missing entries and was resultantly fired from her job. Upon dismissal, Jane filed suit against her former employer under the New Jersey Conscientious Protection Act (CEPA).

CEPA was enacted to protect employees from retaliation after they disclose (“blow the whistle”) or object to their employer’s participation in unlawful or harmful activity. Retaliation can be discharge, suspension, demotion or other adverse employment action taken against an employee in the terms and conditions of employment. Under CEPA, an employee is protected from such retaliation if the employee either discloses or objects to an activity of the employer which the employee reasonably believes is in violation of law, regulation, rule or incompatible with a clear mandate of public policy.

Unfortunately for Nurse Jane, her claim was dismissed upon motion for summary judgment with the court having determined that she was not protected from employer retaliation under CEPA, and thus the care facility was within its rights to fire her. The appellate court affirmed the lower court’s granting of summary judgment, noting specifically that her whistleblowing was not protected because she did not possess an actual objectively reasonable belief that her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law or a clear mandate of public policy, or that the practice constituted improper quality of patient care. Absent some actual codified law, rule or regulation, her claim was found to lack the adequate grounds necessary in order for a verdict to be granted in her favor.

However, if you feel that you may be a whistleblower as a result of your employer requiring you to engage in conduct which violates either a law, rule, regulation or public policy, and you have experienced a retaliatory action because of your whistleblower activities, you may be entitled to economic damages including back pay and front pay, as well as compensation for emotional distress you have endured. Attorneys at Mashel Law have successfully litigated many CEPA claims. Contact an attorney at Mashel Law LLC and let our experience work for you.