One method of asserting a CEPA claim, is to engage in whistleblowing activity of the company engaging in activity that violates public policy. The question that is often presented in these instances, is whether or not the activity violates public policy. Thus, the courts examine various instances to opine as to what constitutes a violation of public policy.
i. The Constitution can be the source of a violation
New Jersey has found the Constitution to be such a source. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 (1992); also, see, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 404, 161 A.2d 69 (1960) (“Public policy at a given time finds expression in the Constitution, the statutory law and in judicial decisions.”); Radwan v. Beecham Labs., 850 F.2d 147, 151-52 (3d Cir.1988) (finding a clear mandate of public policy in New Jersey’s constitutional right to collective bargaining, N.J. Const. art. 1, ¶ 19); Zamboni v. Stamler, 847 F.2d 73, 83 (3d Cir.) (finding public policy in free-speech and–assembly clauses of United States and New Jersey Constitutions) cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 710 P.2d 1025, 1033 (1985) (general statement including constitution as source of public policy); Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 881, 824 P.2d 680, 687 (1992) (same); Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982) (same); Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 15, 421 N.E.2d 876, 878 (1988) (same) Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.Ct.App.1985) (same); Burk v. K- Mart Corp., 770 P.2d 24, 28 (Okla.1989) (same).
ii. A Pierce violation
The New Jersey Supreme Court defined a common law retaliation cause of action in the seminal case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). In this case, the court ruled that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient. Absent legislation, the judiciary must define the cause of action in case-by-case determinations.
iii. The Public interest is at issue
The essence of a CEPA claim should revolve around an issue that touches the public and not just the individual plaintiff. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187-88 (1998). At its core, the legislative intent of CEPA is to protect from retaliatory discharge, those employees who, “believing that the public interest overrides the interest of the organization [they] serve[ ], publicly ‘blow[ ] the whistle’ [because] the organization is involved in corrupt, illegal, fraudulent or harmful activity.” Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility (1972). To discern such a violation, you should look generally to the federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy. The guiding principle is that the offensive activity must pose a threat of public harm and not merely pose a private harm or a harm solely to the plaintiff.
In the recent case of Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 444-45 (2004), the court took a hard look at whether being discharged for refusing to sign a restrictive covenant agreement could constitute a violation of the law. The court first found that restrictive covenant agreements are valid in New Jersey although they may be overreaching. The court specifically addressed the phrase, “clear mandate of public policy” as a section 3c(3) CEPA violation. The court found that a public policy expressed in the form of a statute, rule or regulation promulgated pursuant to law, is not what was meant under Section 3c(3). The Court found that this type of restrictive interpretation would reduce N.J.S.A. 34:19-3c(1) (Section 3c(1)) to mere surplusage, since it employs those legal precepts as a frame of reference for evaluating an employer’s conduct… A “clear mandate” of public policy suggests an analog to a constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, under Section 3c(3), there should be a high degree of public certitude in respect to acceptable versus unacceptable conduct… The legislative approach vis-à-vis a “clear” mandate of public policy bespeaks a desire not to have CEPA actions devolve into arguments between employees and employers over what is, and is not, correct public policy. Such an approach also fits with the legislative requirement of a “mandate” as opposed to a less rigorous standard for the type of public policy that is implicated.
iv. A summary of what constitutes public policy
- Code of Ethics: Hippocratic Oath is not a source of public policy – Pierce v. Ortho., supra
- Society of Toxicology’s Code of Ethics can be public policy. Mehlman v. Mobil Oil Corp. supra.
- Attorney’s Code of Professional Responsibility is a source of public policy. Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10 (1992). (Restrictive covenants unenforceable against attorneys – because of public policy protecting attorney-client relationships).
- State Board of Psychological Examiners Regulation is a source of public policy. Comprehensive Psychology System v. Prince, __ N.J. Super. __ (App. Div. 2005); 2005 WL 275822. – (Restrictive covenants unenforceable against psychologists because of public policy protecting psychologist-patient relationship
- American Medical Association Council on Ethical and Judicial Affairs may constitute public policy. Pierson v. Medical Health Centers, 2004 WL 1416265, Certif. Granted 181 N.J. 336. (Restrictive covenants still enforceable against doctors based upon Karlin v. Weisberg, 77 NJ 408 (1978) despite physician-patient relationship).
- Internal Complaints
o Abbamont v. Piscataway Twp. Bd. of Ed., 136 N.J. 28 (1994). Public policy is implicated where a teacher complained that improper ventilation was causing an unsafe working condition
o Higgins v. Pascack Valley Hosp., 158 NJ 404 (1999). Public policy is implicated where employee makes in internal complaint that improper forms were filed and that a co-worker mishandled a patient’s medication.
o Roach v. TRW, 164 N.J. 598 (2000). Public policy is implicated where employee makes an internal complaint about fraudulent activity of a co-worker.
o Gerard v. Camden Co. Health Services, 348 N.J. Super. 516 (App. Div. 2002), certif. denied 174 N.J. 40 (2002). An employee’s complaint that another employee is being falsely disciplined constitutes public policy.
o Maw v. Advanced Clinical Communications, 179 N.J. 439 (2004). A dispute between an employer and employee over a restrictive covenant does not implicate public policy.
o Ackerman v. The Money Store, 321 N.J. Super. 308 (Law Div. 1998). A dispute over an arbitration agreement implicates public policy and can violate LAD and give rise to a Pierce claim.
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