New Jersey’s Conscientious Employee Protection Act (“CEPA”) is generally considered to be one of the broadest whistleblower statutes in the country, enacted to “protect and encourage employees to report illegal or unethical workplace activities.” Due to CEPA’s broad nature, employers often struggle to identify strategies to dispose of CEPA claims short of settlement or trial. One tool available to employers in defending CEPA claims is CEPA’s identification requirement. A plaintiff must do more than simply voice displeasure with an employer’s operations to succeed on a CEPA claim. Instead, “a plaintiff must identify a statute, regulation, rule, or public policy that closely relates to the complained-of conduct.”
The Appellate Division’s February 18, 2026 decision in Sloan v. Cape Regional Medical Center, Inc., while unpublished and therefore only for instructive purpose, illustrates how that identification requirement operates in practice and what happens when a plaintiff fails to satisfy it. The Appellate Division affirmed summary judgment on some of the plaintiff’s CEPA claims while reversing on others, demonstrating just what the identification requirement entails and providing a roadmap for how employers can challenge it.
Sloan’s Lawsuit and The Appellate Division’s Holdings
John Sloan is the former director of plant operations for Cape Regional Medical Center. During his employment, Sloan raised internal complaints regarding fire-safety, operating room temperature and humidity levels, and electrical code violations in the hospital’s sewage ejector pit. In his lawsuit, Sloan alleged he was terminated in retaliation for his complaints. The trial court granted summary judgment for the defendants because Sloan could not sufficiently identify the sources of law and public policy on which his claims were based.
On appeal, Sloan only addressed complaints regarding National Fire Protection Association (“NFPA”) regulations, Centers for Medicare & Medicaid Services (“CMS”) regulations, the National Electric Code (“NEC”), and Section 1135 of the Social Security Act. How the Appellate Division dealt with each is instructive on the identification requirement.
The Appellate Division reversed summary judgment on Sloan’s complaints about electrical work in the hospital sewage ejector pit in violation of the NED. Sloan emailed hospital leadership stating the electrical work was “not code compliant” and attached a photograph annotated with specific references to relevant NEC sections. Sloan’s counsel identified the sections in Sloan’s opposition to summary judgment and the Appellate Division found the citations were “sufficient to meet the identification requirement.” This is perhaps the clearest example of identification as Sloan identified certain NEC codes at the time of his complaint and his counsel was able to rely on that during motion practice.
Likewise, the Appellate Division reversed summary judgment on Sloan’s complaints based on CMS regulations. Sloan’s counsel was able to identify an on-point federal regulation and quoted CMS interpretive guidelines outlining hospital requirements. The regulations related to humidity levels and Sloan testified that he observed, and reported, humidity levels outside the required range. Because Sloan reported violations regarding humidity levels and there were in fact regulations regarding operating room humidity levels, the Appellate Division concluded Sloan met the identification requirement.
Conversely, the Appellate Division affirmed summary judgment on Sloan’s fire-safety complaints because he failed to identify any specific NFPA code provision. Sloan raised concerns about uninspected fire extinguishers, emergency lighting, exit signs, and failing sprinklers, but at deposition offered only a general reference to “code” without citing any section. The court found these “vague references” were “insufficient to satisfy the identification requirement.” The Appellate Division noted that the NFPA has “roughly 300 codes and standards” and the trial court was “not obligated to search through those codes for the relevant regulation when plaintiff’s counsel has failed to provide it.” The Appellate Division emphasized that the identification requirement “does not require the plaintiff to be personally aware of specific sections of the laws or regulations at the time he blows the whistle . . . But it does require plaintiff’s counsel to assist the court in resolving the threshold question of law regarding the existence of a law, regulation, or public policy.” If even counsel cannot identify the specific legal authority, dismissal may be warranted.
Finally, the Appellate Division affirmed summary judgment on Sloan’s claim based on Section 1135 of the Social Security Act, but for a fundamentally different reason than the NFPA claims. Although Sloan specifically identified Section 1135, the Appellate Division held “it is not a law, or a rule or regulation promulgated pursuant to law that may be violated.” Rather, it “simply grants the Secretary discretion to relieve hospitals from the duty to comply with other regulations.” Therefore, Section 1135 could not serve as the basis of a CEPA claim. This references an important departure from normal identification issues: even a precisely cited legal authority will not satisfy CEPA’s identification requirement unless the provision imposes an affirmative obligation capable of being violated.
Practical Takeaways For Employers
The Sloan decision offers several practical takeaways for New Jersey employers and HR professionals, both during and before litigation.
- Distinguish between general complaints and regulatory objections: Generalized disagreements with the company likely cannot meet the identification requirement of a CEPA claim whereas complaints about violations of legal authorities like regulations may stand on firmer ground. While the employee in Sloan could not identify the specific regulation at the time of his complaint or in deposition, he did identify the substance of the regulations at issue and his attorney included the specific regulation citations in his brief opposing summary judgment.
- Discern the type of authority that is the basis of the complaint: Even if the employee references a legal authority, if it is not of the type that can be violated, like Section 1135 of the Social Security Act, it arguably cannot form the basis for a valid CEPA claim.
- Test the specific legal authority in discovery: Even though an employee does not need to identify a specific legal authority at the time of making a complaint, the burden changes once a lawsuit is filed. If a plaintiff can only cite vague categories of authority without specifying a specific legal provision that was violated, the claim might be challengeable.
Jackson Lewis attorneys are available to assist employers with claims under CEPA and for counseling to help prevent actions before they start.
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