NJ Labor And Employment Law
The New Jersey Labor and Employment Law Blog is authored by Jay S. Becker and Joseph C. DeBlasio, shareholders in the Labor and Employment Law Practice Group, with support from the associates in the Group. It is dedicated to provide news and updates regarding all labor and employment matters throughout New Jersey.
Subscribe to Our FeedUltrasound Technician does not Get Whistle-Blower Protection for Second-Guessing Doctor
June 10, 2010 | No Comments
Posted by admin
Imagine that one day a pregnant woman goes in for a routine ultrasound. During the exam, she tells the technician that some time earlier in the pregnancy she had an issue with substantial vaginal bleeding. She also explains that her doctor instructed her to just rest in bed. Now, imagine that the technician, genuinely alarmed by this story and concerned for the woman’s well being, tells the woman that her doctor had not done enough for her, and that she should have been directed to the emergency room because of the potential for serious complications with the pregnancy. Then later, the woman calls her doctor, angry that he did not do more to treat her bleeding. The doctor responds by calling the imaging center to complain about the technician’s remarks to his patient, and the technician gets fired because of it. These facts make up the allegations asserted by the plaintiff technician in DiLisciandro v. Atlantic Medical Imaging, a case where a complete dismissal of the wrongful discharge complaint was obtained by our firm for failure to state a valid claim under the law. The dismissal was recently affirmed by the New Jersey Appellate Division.
The Appellate Division decision is important because it clarifies that under the state whistle-blower statute, the New Jersey Conscientious Employee Protection Act (CEPA), an employee does not engage in a protected whistle-blowing act by objecting to, or refusing to participate in, an activity, policy or practice of a third-party. Rather, to gain the protections of the relevant sections of CEPA, an employee must object to, or refuse to participate in, an activity, policy or practice of the employer. Plaintiff attempted to circumvent this legal threshold by arguing that her discharge alone was evidence that the employer in this case had a “policy or practice of remaining silent in the face of improper patient care by a referring physician.” But, as the Appellate Division correctly pointed out, plaintiff’s termination “cannot be the sole proof of both the policy or practice and the retaliatory act[.]” Indeed, it is only logical that “the policy or practice must have been known to the plaintiff at the time of her whistle-blowing activity and before the retaliatory act.”
The plaintiff in this matter has filed a Notice of Petition for Certification with the Supreme Court of New Jersey. We will keep you updated if the Supreme Court agrees to hear the case.
