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Hitesman v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 16, 2010

JAMES A. HITESMAN, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND BRIDGEWAY CARE CENTER, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 178,779.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 24, 2010

Before Judges Cuff and Payne.

Claimant James A. Hitesman appeals from a final decision of the Board of Review denying unemployment benefits on the grounds of misconduct. Claimant was employed by Bridgeway Care Center, Inc. (Bridgeway) as evening supervisor at a senior health care convalescent center. It is undisputed Bridgeway terminated claimant after he discussed his concerns with facility managers about a flu outbreak within its patient population and the facility's response to it, and his disclosure of redacted patient files to local, regional and state health officials and a local newspaper. Claimant contends his discharge should be viewed as retaliation for engaging in protected activity; the employer argues that he was discharged for violating internal policy mandated by federal law concerning patient privacy. We reverse.

The Board of Review argues that claimant raises for the first time on appeal that he was terminated in retaliation for disclosing the existence of persistent health issues at the facility to pertinent public health agencies. Although claimant, who appeared pro se at the May 12, 2008 hearing, did not specifically mention the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, his testimony implicitly conveyed his belief that he had engaged in protected activity and his termination was retaliatory. He also, of course, testified that his disclosures fully complied with the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.A. 1320d to d9.

As framed by claimant and the employer, the central issue is the failure of claimant to secure the permission of the facility privacy officer before he disseminated the information to public health agencies and whether any failure to do so warrants discharge. Deliberate violation of the employer's rules by the employee constitutes misconduct and will disqualify an employee from benefits. Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001). Here, claimant testified that he was not aware that the facility required him to submit information to a privacy officer prior to dissemination of patient information. The employer testified that it had such a policy, that it had designated an employee as the privacy officer, and that it informed employees of the policy and procedure orally in training sessions and in a document signed by each employee. Notably, this document was not introduced in evidence.

While it is important to preserve the unemployment trust fund against unwarranted claims, we must also be mindful that the Unemployment Compensation Act, N.J.S.A. 43:21-1 to -56, is remedial legislation and is liberally construed to effectuate its purpose. Brady v. Bd. of Review, 152 N.J. 197, 212 (1997).

Here, Bridgeway urged that claimant willfully and deliberately disregarded a known rule adopted by the employer. It also asserted that the rule had been reduced to writing and circulated to all employees. Whether this rule had been communicated to all employees, and to claimant in particular, was critical to resolution of the central issue before the Board of Review. The absence of this critical document is telling. Without such communication, there is no record support to find that claimant deliberately violated rules adopted by the employer.

In short, we hold that there was insufficient evidence before the Board of Review to conclude that claimant willfully and deliberately disregarded a known rule of his employer. Therefore, the order disqualifying claimant for benefits due to misconduct is reversed.

Reversed.

20100316

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