Written by attorney Ty Hyderally

What constitutes a violation of public policy under CEPA

a. What constitutes a violation of public policy

One method of asserting a CEPA claim is to engage in whistleblowing activity toward 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 scenarios to explore 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).

ii.A Pierce violation

The New Jersey Supreme Court defined a common law retaliation cause of action in the seminal case ofPierce 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.

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 discern 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.

iv.A survey 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,375 N.J. Super. 273 (App. Div. 2005); 2005 WL 275822. - (Restrictive covenants unenforceable against psychologists because of public policy protecting psychologist-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 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.

· Employment Agreements

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). Requiring employee to sign an arbitration agreement can implicate public policy.

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