Category Archives: Whistleblowing

The War on Whistleblowers

Source: Nancy M. Modesitt, University of Pennsylvania Journal of Law & Public Affairs, Volume 6 (Forthcoming), Date Written: September 2020

From the abstract:
In the last few decades, Congress has passed a variety of statutes to improve legal protections for federal employee-whistleblowers, with the dual goals of promoting disclosure of wrongdoing and prohibiting retaliation against whistleblowers. However, these statutes and goals are being undermined in the current administration. This Article argues that President Trump’s administration has conducted multi-faceted attacks against federal employee-whistleblowers in order to deter disclosure of the administration’s wrongdoing. Since these efforts began, there has been a decrease in whistleblower disclosures of wrongdoing in the federal government. In order to stop this trend, immediate action is needed, including amending federal laws to reduce the possibility of retaliation by administration officials against whistleblowers, increasing funding and staffing at the federal agencies tasked with protecting whistleblowers and adjudicating their retaliation claims, and promoting greater outreach by Congressional committees to federal employees within agencies over which such committees have oversight authority. If these steps are not taken, there is a significant risk that the culture of promoting whistleblowing that has been cultivated within the federal government will collapse, leaving the American public in the dark about future misconduct within the Executive branch of the government – not just in this administration, but also in future ones.

‘There’s a Price to Pay in Order Not to Have a Price’: Whistleblowing and the Employment Relationship

Source: Luca Carollo, Marco Guerci, Nicoletta Parisi, Work, Employment and Society, OnlineFirst, Published November 26, 2019
(subscription required)

From the abstract:
Whistleblowing is a typical and widespread phenomenon in contemporary societies, and it has the potential to illuminate many of the issues that affect the workplace today. By recounting the story of an Italian whistleblower who suffered harsh professional retaliation and severe personal consequences because of his disclosure of accounting malpractices in his employing organization, this article aims to furnish a series of insights and stimulate avenues for future research. In particular, the account yields rich insights into current pervasive forms of managerial control of the workforce, the role of traditional and new actors in influencing the power dynamics of the employment relationship, and the interplay between the organizational and institutional levels in the regulation of labour relations.

Whistleblowing Policies in American States: A Nationwide Analysis

Source: Jonathan P. West, James S. Bowman, The American Review of Public Administration, Volume: 50 issue: 2, February 2020
(subscription required)

From the abstract:
American states have statutes with whistleblowing protection provisions for employees. These laws may focus on the duty to divulge misconduct, procedures for reporting disclosures, and protection from retaliation. The research question is, “What is the scope, content, and perceived effectiveness of these provisions?” The premise is that they have value, albeit uncertain, in the practice of public administration. To investigate this subject area, documentary and attitudinal data were gathered. This article presents the results of the first comprehensive study of state-level whistleblowing provisions. The importance of this work is evident for two reasons. First, though corruption varies across state lines, overall it is common. Second, given the low visibility and high complexity of organizational activities, detection of abuse rests in large part with the workforce.

#MeToo whistleblowing is upending century-old legal precedent demanding loyalty to the boss

Source: Elizabeth C. Tippett, The Conversation, March 5, 2019

…. While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.

The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.

It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.

The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements. ….

How to Break an NDA, See If Your Pay Is Fair, Confront a Colleague, and More

Source: Mary Pilon, Bloomberg, May 1, 2018

Practical advice on some of the most uncomfortable—and important—things you could do for your career.

Employee Rights
Source: NOLO, 2018

Can you be required to take a drug test? Who is entitled to earn overtime? What kinds of conduct fall under the definition of illegal discrimination and harassment — and what should you do if you are a victim? Can you take time off work to care for a new child, serve in the military, cast your ballot, or recover from a serious illness? Get detailed answers to all of your questions about workplace rights here.

Your Workplace Rights
Source: Workplace Fairness, 2018
Hiring & Classifications
Looking for a new job? Wondering if the questions you were asked at the interview were legal? This section addresses some of the most common issues you may encounter in the hiring process, and how you are classified as a worker may affect your workplace rights.

Are you being treated differently at work? If so, is it because of your race, sex, age, disability, national origin or religion? Wondering what other kinds of discrimination are illegal? Get the facts on workplace discrimination here.

Harassment & Other Workplace Problems
Whether you’re being pressured to have sex with your boss, forced to listen to foul language or slurs, or wondering whether the comment you made might get you in trouble, you’ll find this information on harassment and other problems you might encounter on the job to be helpful.

Unpaid Wages/Wage & Hour Problems
Not getting paid what your employer owes you? Are you forced to work overtime, but not receiving any extra pay? Get the facts on “wage and hour” laws here.

Benefits & Leaves
For most employees, your job isn’t just about the pay, but also what benefits are included. Sick leave, disability leave, family/medical leave–the different kinds of leave you may be allowed to take can be confusing. Get information about health care coverage, pensions, leave eligibility and other benefit-related information here.

Privacy & Workplace Surveillance
Is somebody watching you? It just might be your employer. Find out here what rights to privacy in the workplace you do and do not have.

Health & Safety/Workplace Injuries
Is your workplace unsafe? Are you worried about getting hurt at work? Wondering what to do about it? Have questions about the workers’ compensation system? Find the answers here.

Whistleblowing & Retaliation
Fighting back when you see your employer doing something wrong can be scary, and risky. But there are laws that can protect you in a number of situations. Learn more about how you might be protected when you blow the whistle or challenge illegal conduct.

Unions & Collective Action
Facing an organizing campaign at work (or want to get involved in one)? Already a union member but don’t understand how things work? Fired for organizing or joining a union? This section covers information about your rights to organize and be in a union, and how unions work.

Termination & Unemployment
Whether you were suddenly fired, laid off, or asked to resign, you’ll want to know what happens now that you are out of a job.

Why companies like Wells Fargo ignore their whistleblowers – at their peril

Source: Elizabeth C. Tippett, The Conversation, October 24, 2016

Enron. Worldcom. The Madoff scandal. The mortgage meltdown. Now Wells Fargo.

High-profile corporate frauds like these all seem to follow the same pattern. First the misconduct is discovered, and then we learn about all of the whistleblowers who tried to stop the fraud much earlier. Congress then tries to enhance whistleblower protections, with varying success.

The Sarbanes-Oxley Act, passed in 2002 after the Enron and Worlcom scandals, was supposed to protect whistleblowers who uncovered accounting frauds, but judges typically rejected their retaliation claims. The Dodd Frank Act, approved in 2010, provides financial rewards for certain whistleblowers. Its success is still unclear.

While these laws may protect employees who expose wrongdoing from retaliation and encourage more to do the same, nothing requires employers to take their disclosures seriously. And as we saw with the latest scandal involving Wells Fargo, several former employees say they tried to get the company’s attention in 2005 and 2006, to no avail….

Lane v. Franks: The Supreme Court Clarifies Public Employees’ Free Speech Rights

Source: Thomas A. Schweitzer, Touro College – Jacob D. Fuchsberg Law Center, Touro Law Center Legal Studies Research Paper Series No. 15-33, 2015

From the abstract:
On June 19, 2014, the United States Supreme Court decided an important First Amendment case concerning the free speech rights of government employees. While public employees speaking as citizens on issues of public concern have the same right to freedom of speech as other citizens when they speak on matters of public concern, the Court has held that when they make statements pursuant to their official duties, they must accept certain limitations on their freedom of speech. In Lane v. Franks, the Court unanimously rejected the extreme position of the Eleventh Circuit, which had held that a public official had no remedy when he was fired in retaliation for turning in a “no show” office holder who was tried, convicted and imprisoned.

While two other appellate courts had conferred broader protection on public employees’ free speech rights in similar cases, there were only a handful of such cases. However, Lane’s actions, which presumably led to his termination, manifestly promoted the public interest in combatting government corruption. Thus, the lower courts’ position that Lane had suffered no remediable wrong evidently convinced all the justices that prompt action was required to set the Eleventh Circuit straight.

Introduction: Employment Law and the Evolving Organization of Work – A Commentary

Source: Emily A. Spieler, Northeastern University Law Journal, Vol. 6 No. 2, 2014

From the abstract:
In 2013, Northeastern University Law Journal hosted a symposium, titled “Employed or Just Working?,” to address issues of legal protections for workers in the United States, regardless of their official classifications.

This article introduces the symposium’s resultant articles. It places the specific topics addressed by issue contributors in the context of the history of workers’ rights being defined and redefined as courts and legislatures responded to complex social, political and economic forces.

This contextualization touches on several periods: the post-Lochner depression era; the era of civil rights activism that gave rise to basic notions of dignity and rejected discrimination based on status; and the emergence of concern in the 1970s regarding the status of at-will employees when their claims collided with matters of public concern – resulting in various anti-retaliation provisions both under the common law and under a myriad of whistleblower statutes. Reflecting an assumption that the employee-employer relationship was amenable to simple analysis and definition, none of the 20th century federal statutes attempted to include even a reasonably useful definition of the key terms of “employee” or “employer.” In fact, the statutory definitions are tautological: employees are individuals employed by employers; employers are entities that employ employees. Despite this statutory assumption, the courts have repeatedly been called upon to apply each statute to nonstandard employment relationships. The definitional problems have never been solved, as the articles in this symposium illustrate.

The author finds that the four contributed articles draw a troubling picture, reminding us that there are inadequate legal protections for misclassified workers and workers in nonstandard and evolving work arrangements.

Whistle Where You Work? The Ineffectiveness of the Federal Whistleblower Protection Act of 1989 and the Promise of the Whistleblower Protection Enhancement Act of 2012

Source: Shelley L. Peffer, Aleksandr Bocheko, Rita E. Del Valle, Allmir Osmani, Shawn Peyton, and Edna Roman, Review of Public Personnel Administration, Vol. 35 no. 1, March 2015
(subscription required)

From the abstract:
The Whistleblower Protection Act (WPA) of 1989 was enacted to provide protection to employees who report wrongdoing on the part of their employers. This study analyzed whether the provisions in the WPA actually protect federal government employees from retaliation by their federal government employers. The research focused on a legal analysis of federal employee WPA claims litigated in federal court. Furthermore, within those cases, the claims were separated by issues—national security, environmental issues, and government ethics—to get a fuller understanding of WPA issues. The findings of the analysis suggested that the WPA did not provide adequate protections for employees. Out of 151 appellate cases that were identified and reviewed in the study, 79% of cases were ruled in favor of defendants—federal agencies. Out of 142 cases involving government ethics and administration issues, 79% of cases were lost by employees. In issues involving the environment, 100% of cases resulted in a loss for employees. Out of four cases involving national security, 75% were lost by federal employees. The results lead to the conclusion that either the WPA as written or the manner in which courts are interpreting the WPA is not consistent with the intent of the legislation—to protect employees. The article further analyses the Whistleblower Protection Enhancement Act (WPEA) of 2012 and whether it cures the defects in the WPA. The analysis shows that the WPEA may not live up to its promise.