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An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements
... Many states have adopted statutory protections for filing for workers' compensation and for whistleblowing. While these protections protect a similar scope of worker actions as the common-law public policy exception, legal scholars have argued that most statutory protections are less likely to be an effective deterrent for employers (Sinzdak, 2008). ...
... Many states have adopted statutory protections for filing for workers' compensation and for whistleblowing. While these protections are similar to the common-law public policy exception in terms of the scope of protected worker actions, for reasons described in this section legal scholars have argued that these statutory protections are less likely to be an effective deterrent for employers (Sinzdak, 2008). ...
... If a state had enacted a statutory protection prior to For example, states place varied and confusing restrictions on to whom an employee may report. Some states require that whistleblowers report to government agencies to be guaranteed protection, while others require the report be made to a supervisor within the company itself (Sinzdak, 2008). ...
Workplace safety policies are designed to ensure that employers internalize the costs of injuries, but employers can undermine these policies with threats of dismissal. We show that states' adoption of the public policy exception to at-will employment—an exception forbidding employers from firing workers for filing workers' compensation claims or for whistleblowing—led to a substantial reduction in injuries. The widespread adoption of the public policy exception explains 14 percent of the decline in fatal injury rates between 1979 and 1994. Statutory protections from retaliatory firing also improved safety, but only when employers faced sufficiently strong penalties for violating them.
... Many states have adopted statutory protections for filing for workers' compensation and for whistleblowing. While these protections protect a similar scope of worker actions as the common-law public policy exception, legal scholars have argued that most statutory protections are less likely to be an effective deterrent for employers (Sinzdak, 2008). ...
... Many states have adopted statutory protections for filing for workers' compensation and for whistleblowing. While these protections are similar to the common-law public policy exception in terms of the scope of protected worker actions, for reasons described in this section legal scholars have argued that these statutory protections are less likely to be an effective deterrent for employers (Sinzdak, 2008). ...
... If a state had enacted a statutory protection prior to For example, states place varied and confusing restrictions on to whom an employee may report. Some states require that whistleblowers report to government agencies to be guaranteed protection, while others require the report be made to a supervisor within the company itself (Sinzdak, 2008). ...
Workplace safety policies are designed to ensure that employers internalize the costs of injuries, but employers can undermine these policies with threats of dismissal. We show that states’ adoption of the public policy exception to at-will employment—an exception forbidding employers from discharging workers for filing workers’ compensation claims or whistleblowing about illegal conditions—led to a substantial reduction in serious injuries. The widespread adoption of the public policy exception explains 13 percent of the overall decline in fatal injury rates between 1979 and 1994. The exception averted more injuries at unionized workplaces than at non-unionized workplaces.
... Most states have whistle-blower statutes; however, the scope of protection and protected activities varies by jurisdiction. Generally speaking, each state provides some level of protection, but the requirements necessary to receive protection are not uniform (see Sinzdak, 2008). Differences can include which classes of private employees are protected and the nature of the employer activity, such as whether such a purported violation poses "a substantial and specific danger to the public health or safety," as noted in a New York whistle-blower law (as cited in Sinzdak, 2008Sinzdak, , p. 1638. ...
... Generally speaking, each state provides some level of protection, but the requirements necessary to receive protection are not uniform (see Sinzdak, 2008). Differences can include which classes of private employees are protected and the nature of the employer activity, such as whether such a purported violation poses "a substantial and specific danger to the public health or safety," as noted in a New York whistle-blower law (as cited in Sinzdak, 2008Sinzdak, , p. 1638. State protections are further distinguished by whether the employee's reporting must be accurate, to whom the employee must report, and the available remedies for such claims (Wendt, 2014). ...
... Active whistle-blowers may report wrongdoing to either an internal source, such as an employer, or an external source, such as a governmental regulatory body or a news media outlet. In this situation, where a person is forced to reveal himself or herself as the one exposing the wrongdoing, the whistle-blower's individual rights may be trumped in favor of protecting society (Sinzdak, 2008). ...
... Thus, in telling their stories, individuals seeking legitimacy try to 10. For instance, the protection offered to whistleblowers in substance is reduced by the formal administrative complexity of some legislation (e.g., SOX allows only a short time period for whistleblowers to file a civil suit against their employer after retaliation) (Sinzdak 2008). The issue of law being rendered merely symbolic whether by design or default is not recent (see McBarnet and Whelan 1991). ...
... Table 1 provides a brief synopsis of each whistleblower's story. The whistleblowing literature makes a general distinction between internal (i.e., reporting to someone within the firm) and external (i.e., reporting to someone outside the firm) whistleblowing (Dworkin and Baucus 1998;Sinzdak 2008;Park and Blenkinsopp 2009). The literature (e.g., Culiberg and Miheli c 2017) has also introduced another distinction: individuals who work inside the organization and report wrongdoing are "inside" whistleblowers. ...
Evidence suggests society still does not view whistleblowers as wholly legitimate—despite legal protections now offered in some jurisdictions, such as the United States. Drawing on a discourse analysis, (i.e., an examination of statements), we investigate the well‐publicized stories of seven whistleblowers from 69 sources, including books, first‐ and second‐hand interviews, websites and videos. Our focus is to examine how whistleblower discourses can build legitimacy by more tightly defining the whistleblower role and demonstrating its alignment with social norms. Using whistleblower self‐narratives, we identify four narrative patterns: (1) Trigger(s): the event(s) leading to whistleblowing; (2) Personality traits: whistleblower's morality, resourcefulness, and determination; (3) Constraints: barriers requiring regulatory and organizational change; and (4) Consequences: the longer‐term positive impact of the whistleblowing act. These patterns rely on symbolic, analogical, and metaphorical framing to allow others to better understand the role of whistleblowers and enlist their support. Exploring a data set of 1,621 press articles, we find indications that these narrative patterns resonate in the media—which provide a form of support and may be instrumental in legitimizing the whistleblower role. Grounded on these results, we develop a legitimacy construction model of the whistleblower role, that is, a representation of how role legitimacy is produced and sustained. From this model, we identify a number of important areas for future research.
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... Finally, this research process outcome exploits an "authentic opinion", reflecting the narrative and experience level of the 1 st year university Environmental Management and Sustainable Development ISSN 2164-7682 2025 students, through an engaged and robust methodological rigour (Seale and Silverman, 1997). This was designed to assist in the construction of an analysis committed to the 'interests of the public good' (Sinzdak, 2008). ...
This is a research paper that is focused on assessing issues relating to Climate Change Activism by 1st year university students and its implications for environmental concerns and issues.An interpretive methodology was utilised in order to help understand 1st year university student perceptions of Climate Change Activism in Bangkok. The scope for this research were 1st year private university students involved in climate change activism. Consequently, the population of interest was made up of 4 separate groupings, located at multiple private university sites geographically situated in Bangkok.The research outcomes comprised of Four (4) main themes: Motivation, Society; Climate Change Strategies; and university Issues; and Twelve (12) sub-themes, underpinned by 219 conversation targets.The paper addresses the raised issues of 1st year private university students’ knowledge and attempts of influencing climate change developments in Thailand, in relation to western approaches through the “Thunberg effect”.
... The observations and documentary data from the studied population reflected the project experiences of the application of risk/stakeholder management and Employer toxic leader(s) and the negative impact of their practices (Lambsdorff, 1998). These were designed to help build an analysis in the "interests of the public good" and utilising a "…good-faith effort to report wrongdoing…" (Sinzdak, 2008) -in an open and clear manner due to unethical managerial behaviour (Knoll, Schyns and Petersen, 2017). Table 1 below to include the number of informant responses for each independent sub-theme discussion target. ...
This is a research paper that is focused on assessing the impacts of Employer Toxic Leadership in terms of Risk and Stakeholders Management of an 81Km road construction project in Nepal. An interpretive methodology was utilised in order to help understand implicitly the management leadership’s impact on the project. The scope for this research was the on-site supervisory team. The targeted population of interest was made up of 15 engineers located at on-site offices in the early construction phase of a road construction project. The research outcomes consisted of six (6) main themes with corresponding nineteen (19) sub-themes.The paper addresses raised issues of toxic leadership impacts within risk and stakeholder management and establishes outcomes and implications for the continuing project construction management. The paper also indicates that the Employer conducts inadequate risk management especially in relation to a variety of stakeholders and thus faces serious project performance issues leading to project failure.The Employer road construction management is considered to be a very weak risk management environment due to institutional toxic leadership style, orientation and lack of professional engagement of project management with stakeholders. The Employer (government department - DoR) has purposely and negatively altered the project quality and delivery expectations resulting in serious questions over its operational governance stance and financial efficacy.
... The documentary evidence from the studied population reflected the project related experiences of the application of risk/security management and the negative impact of decisions associated with the major stakeholder practices (Lambsdorff, 1998). These were designed to help build an analysis in the "interests of the public good" and utilising a "…good-faith effort to report wrongdoing…" (Sinzdak, 2008) -as open as possible due to unethical management (Knoll, Schyns and Petersen, 2017). Further, given the security situation in Pakistan, there is a clear need to protect the locals and to prevent or mitigate the security situation, but the reporting in this paper is necessary as the level of protective culture is just not shown by the project management major stakeholders -WAPDA, WB or the Engineer. ...
Risk and security management is an important aspect of construction activities, especially in countries where the level of security is challenging. This paper is focused on evaluating the impacts of risk/security measures resulting from stakeholder failures related to explosives mismanagement and security events, over an 18-month period, on a large, complex Dam project in a remote area in Pakistan. In July 2021, an incident occurred that had huge ramifications for the risk/security management of a large dam construction site. A qualitative methodology was utilised, where content analysis was conducted on project documentary evidence and where the research design targeted a closed population of 12 - Engineer supervisors/managers to explore their personal opinions. The outcomes indicated that the Employer, the Engineer, WB group and contractors engage in destructive managerial behaviour considered primarily to reduce project performance and create unsafe project situations that were systemically induced. Further, stakeholders are not managing explosives or the security situation underpinning poor project physical progress, leading to consistent project failure issues.
... Therefore, this supports a rational outcome as "best explanation" (Achinstein, 1992) recreating through grounded theory towards the most valuable outcome (Noble & Mitchell, 2016;James & James, 2011). Finally, this research focus exploits authentic opinion reflecting the narrative and experience level of the high-school students through robust rigour (Seale & Silverman, 1997) and were designed to help construct an analysis committed to the 'interests of the public good' (Sinzdak, 2008). ...
This is a research paper that is focused on assessing issues relating to green brand image influences on high-school students and its implications sustainability. An interpretive methodology was utilised in order to help understand high-school student perceptions of Brand Image in terms of Sustainability. The scope for this research were high-school students with the population of interest made up of 11 private schools, located at independent school sites, situated in Bangkok, Thailand. Findings: The research outcomes comprised of Five (5) Main Themes: Emotional Engagement, Green Brand Trust, Green Brand Loyalty, Functional Benefits, Sustainable Corporate Image; and Twelve (12) sub-themes created through the focused analysis of 133 conversation targets. The paper addresses the raised issues and implications for managing Green Brand Image and Sustainability. These indications are synthesised from major research actors in the field that show that socio-political strategies, economics and marketing Brand developments that should be made clearer and a paradigm shift made to strengthen strategies to engage younger people in positive Brand Image management.
... The principal contribution of this study to whistleblowing research and practice concerns its comprehensive picture of post-WPEA changes to state whistleblower protection laws. While existing studies on whistleblower protection laws have focused on federal laws (Fisher, 1990;Lindquist, 2003) or analyzed whistleblower protection laws from legal perspectives (Sinzdak, 2008;Vaughn, 1999), no existing research, to the authors' knowledge, presents systematic analysis of state responses to federal movements enhancing whistleblower protections. Resultingly, the present study reveals whether or not state whistleblower laws have substantively or reflectively changed since passage of the WPEA of 2012, indicating trends connected to public personnel management, public service ethics, and efforts promoting transparent and accountable government. ...
Recognizing the importance of whistleblower protection, government has equipped itself with legal tools to protect whistleblowers. At the federal level, the Whistleblower Protection Enhancement Act (WPEA) of 2012 represents the most recent legislative action protecting whistleblowers. Currently, all 50 states have their own whistleblower protection laws. However, given the variations among states in statutory protections for whistleblowers, a need exists to examine important changes to state whistleblower laws in light of larger legislative trends at the federal level. This study addresses this research gap by exploring how state whistleblower protection laws have changed following passage of the 2012 WPEA through the lens of institutional theory. Content analysis findings suggest that post-WPEA state whistleblower laws have adopted changes directly reflecting WPEA provisions. The findings further suggest that post-WPEA state whistleblower laws also contain changes which display loose connection to primary components of the WPEA.
... La Directiva europea, por su parte, exige que la situación denunciada suponga -o haya fundamentos para creer de forma razonable que supone-una vulneración del Derecho de la UE, que puede tener lugar fruto de actos u omisiones. Al exigir que la denuncia se refiera a vulneraciones de derecho -y al igual que ocurrirá con los requisitos de razonabilidad y buena fe, que estudiaremos unas líneas más abajo-, el legislador europeo busca desincentivar el torpedeo malintencionado de las decisiones o las meras venganzas personales 50 . Y es que los resultados sugieren que, si bien las leyes de denuncia de irregularidades pueden disminuir los ilícitos, también pueden tener un efecto perjudicial en la cooperación en las organizaciones y confianza mutua, en tanto aumenta la probabilidad de que se produzcan denuncias fraudulentas que crispen las relaciones laborales 51 . ...
El 16 de abril de 2019 el Parlamento Europeo aprobó, con 591 votos a favor, 29 en contra y 33 abstenciones, el texto de la Directiva europea para la protección del denunciante. Este texto, además de confirmar la consolidación de la estrategia de integridad como uno de los pilares del funcionamiento de la UE, marca un antes y un después en la materia, exigiendo una armonización considerablemente intensa, lo cual, especialmente en países como España, que aún no cuentan con una regulación de protección del denunciante, implica la obligación de realizar importantes reformas en su transposición para dar cabida a una figura jurídica ajena a nuestra tradición legal. El presente artículo aborda un estudio, desde la perspectiva del Derecho Público y la situación actual en España, de las nuevas medidas impuestas por la Directiva, su alcance subjetivo y objetivo, los nuevos canales de información que exige o las medidas más relevantes en la protección de los denunciantes, poniendo de relieve las principales líneas de actuación que deberán marcar la futura legislación nacional española.
... For example, whistleblowers report anxiety, depression, panic attacks, and feelings of extreme guilt before, during, and after the disclosure of wrongdoing (Watts & Buckley, 2017). Some of these issues are the direct result of reprisals that whistleblowers can face for their disclosures, a reaction that is argued by some (e.g., Sinzdak, 2008) to stem from whistleblowers' role as a watchdog. ...
Best practice principles exist for laws, regulations, and procedures aimed at the protection of those who report wrongdoing. The purpose of this paper is to examine selected legislation containing whistleblower protections that are relevant to those who disclose wrongdoing in British Columbia to determine how well they follow best practice principles. Several best practice principles were reflected in the legislation reviewed, and the introduction of the new Public Interest Disclosure Act (PIDA) in British Columbia is a positive development in the protection of whistleblowers who are employees of the provincial government. However, not all best practice principles are enshrined in the laws examined here. For example, there are still types of whistleblowers that do not have adequate protections, such as private sector workers and those in the public sector who are not employed by a provincial ministry, government body, or office. In addition, though types of protected disclosures have been expanded under the PIDA, there are still some disclosures of wrongdoing that may remain unprotected, such as interference with freedom of information requests. Some issues were also found related to transparency of decisions made about investigations into disclosures of wrongdoing and complaints of reprisal against whistleblowers, as well as about the accountability of government agencies in protecting whistleblowers. Therefore, some refinements and amendments to whistleblower laws and disclosure management procedures are needed to ensure that adequate protections are afforded to those who disclose wrongdoing in British Columbia.
... This research focus utilises authentic observations reflecting the experience level of toxic leaders and the impact of their practices (Lambsdorff, 1998) designed to help build an analysis in the "interests of the public good" and engaging in a "…good-faith effort to report wrongdoing…" (Sinzdak, 2008).The author relies on the World Bank and Transparency International rules for disclosure under which such research has been conducted (The World Bank, 2010; G20, 2011;OECD, 2014; BSI, PAS 1998PCAW, 2018). This is as a consequence of the publication of a World Bank NRA directly involving the JV Lead Management (The World Bank, 2017) during the research investigations. ...
This is a research paper that is focused on assessing the leadership impacts of Project Management (JV Lead Management) on a road tunnelling construction project in Bangladesh in terms of project performance. An interpretive methodology was utilised in order to help understand implicitly the management leadership’s impact on the project. The scope for this research was the off-site supervisory team. The targeted population of interest was made up of 14 lower-managers/engineers located at one off-site main office in the late design stage/early construction phase of a road-tunnelling project.The research outcomes consisted of four4 main themes and the corresponding 11 sub-themes.The paper addresses raised issues and determines outcomes and implications for the continuing project construction management and the paper also indicates that the Project Management and other senior members of the JV Lead Management - both in-country and overseas -may benefit from more effective leadership training focused on utilizing and embracing contemporary project leadership developments.The road tunnel construction management appears to be very weak due to their low level of technical knowledge, style, orientation and strategies adopted by the Project Management, who operate with a demonstrated lack of coherent leadership or oversight practiced by the JV Lead managing entity.
... The model of whistle-blowing to the public, especially unconditional, is uncommon in comparative law, due to the signifi cant risk of causing irreparable harm to the employer and his reputation by disclosing (unverifi ed) information (De Maria, 1997, p. 148). In contrast to the competent authorities, who, as a rule, have an impartial attitude towards the credibility of the information disclosed, the media tends to prefer sensational reporting, which often creates a negative image of the employer in the public (Sinzdak, 2008(Sinzdak, , p. 1657). However, it seems that the predominant view in the literature is to allow whistle-blowing to the public in case of immediate danger to the public good, such as public health or security (Dworkin andCallahan, 1992-1993, p. 397). ...
The role of a whistle-blower is most commonly taken on by an employee, whose duty of loyalty to the employer is in conflict with disclosure of the employer’s wrongdoing. This requires a balance between the interests of the parties to the employment relationship, on the one hand, and the public interest, on the other hand. It was taken into account in Serbian law when defining the legal status of whistle-blowers, from the fragmented protection of civil servants to the adoption of the Law on Protection of Whistle-blowers (2014). After elaboration of the evolution of protection, authors identify and analyze essential elements of the whistle-blowing concept, as well as its basic functions in Serbian and foreign law. This is followed by critical re-evaluation of the key aspects of protection of whistle-blowers in the legislation and case law of the Republic of Serbia (the circle of protected persons, motives for disclosure of information, damaging actions, the burden of proof and the gradual approach in whistle-blowing). The conclusion is that Serbia has achieved a slow but steady progress in the legal protection of whistle-blowers, and that there is need for further improvement, since certain legal solutions may separate the guarantee of protection of whistle-blowers from the purpose for which it was established.
... The federal Whistleblower Protection Act protects most public employees (Whitaker, 2007), but protection for employees in the private sector is far less, and is usually provided after and in response to a crisis, such as isolated provisions in the Sarbanes-Oxley litigation that followed the Enron debacle and the Dodd-Frank response to the 2008 economic meltdown. State legislation follows a similar pattern; most states provide only very limited protection for private employees (Sinzdak, 2008;Vaughn, 1999). ...
This article reports the results of a two-pronged exploration of public perceptions of whistleblowing, the first using a statewide public opinion poll, and the second, a laboratory experiment in which a multistage scenario determined respondents’ support for an employee’s protest actions and their classification of the employee as a whistleblower. One substantial finding is that self-interest taints the purity of the employee’s motivation making it less likely for respondents to classify the employee as a whistleblower. The employee’s gender, the type of action protested, and whether the employee worked in the public or private sector were randomly manipulated, with no significant differences in respondents’ support or classification of whistleblowing. Implications for future research are discussed.
The duty of loyalty of an employee towards the employer is a secondary duty deriving from an employment relationship. It consists of several elements, including refraining from disclosure of information that could damage the activity, reputation and/or other interests of the employer. This duty, however, cannot be viewed independently from the guaranteed fundamental freedoms and rights of the parties to the employment relationship such as: freedom of expression, on the employee’s side, and freedom of entrepreneurship on the employer’s side, as well as his right to cooperate only with employees who protect the interests of the enterprise. This paper presents the content of the duty of loyalty and its traditional and contemporary meanings, as well as the relationship between this (moral and legal) duty and whistleblowing. Other related issues are also considered, such as the circle of protected persons and if it should include an employee who discloses information on violation of labour law provisions that is detrimental exclusively to that person, in terms of the (in)ability to achieve the protection of labour rights, that are violated or in danger of being violated, through whistleblowing. It is by no means easy to find the right measure of simultaneous preservation of the public interest and the right to blow the whistle.
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.
This chapter contributes a better understanding of not only how the decision to report misconduct takes place, but when it can be considered morally permissible or even obligatory to report wrongdoing. In order to understand ethical decision making in relation to whistle blowing, the chapter first provides a brief overview of the decision-making process that takes place. Next, it presents the key normative arguments and criteria that have been raised by several business ethics commentators. The chapter then applies the proposed criteria to three classic whistle blowing cases to test the criteria's practicality: Dennis Gioia and the Ford Pinto; Sherron Watkins at Enron; and Dr Jeffrey Wigand at the tobacco firm Brown & Williamson. The chapter further provides readers with a sense of how whistle blowing on workplace misconduct takes place, as well as when it might be morally permissible or even morally obligatory to blow the whistle.
This paper investigates the legal protection of whistleblowers in the Republic of Croatia. The first part of the paper presents an in-depth analysis of the legal framework (including both international and national sources of law), whereas the second part discusses settled case-law of national courts and of the ECtHRs. In conclusion the authors tackle the specific issue of whistleblowers within the public sector. To this end they analyse the results of a recently conducted study investigating the perception of whistleblowers in the public sector.
Although government efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation. The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.”
This chapter concerns the legal protection of whistleblowers in Poland. The author analyses the legislation and the case law concerning especially claims for the unfair dismissal and criminal proceedings for the defamation. The aim of this chapter is to present the current state of protection of persons who disclose irregularities in the organizations or companies and to detect the weaknesses of the present Polish legislation in order to recommend legal remedies helping to combat the malpractices with the aid of whistleblowers.
The early twenty-first century has seen several instances of large-scale federal securities law violations - such as Enron, WorldCom, and the Bernie Madoff scandal - that have garnered widespread attention and heavily impacted the global economy. In each of these cases, whistleblowers tried to expose the underlying fraud. These and other scandals led to the enactment of new laws to protect whistleblowers who seek to expose these kinds of violations. In-house attorneys are in a special position to discover, understand, and expose their organization's federal securities violations. However, should in-house attorneys discover misconduct, and when deciding whether or not to take action, they must take into account several different and potentially conflicting governing regimes. As whistleblowers, they can be subject to various state and federal laws, each of which will require them to respond differently in order to be protected from retaliation. These laws have also been interpreted in different ways by different courts. As attorneys, they are subject to state rules of professional conduct, and perhaps other rules governing professional conduct under federal law. As in-house attorneys, they may face additional restrictions, since their employer is also their client. These different regimes can permit or even require attorneys to take conflicting actions in any given situation, making it potentially difficult for an attorney to act without breaking at least one rule or law. This Note argues that in-house attorney whistleblowers should be expected to act in the same way across different governing regimes. In-house attorneys should be required to report federal securities violations internally first and be permitted to report externally thereafter if the violation is not resolved.
Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. There are many reasons for this bias, some obvious and some subtle. Fundamentally, it occurs because — regardless of political affiliation, race, or gender — every American judge shares a single characteristic: a career as a lawyer. This shared background results in the lawyer-judge bias. The book begins with a theoretical explanation of why judges naturally favor the interests of the legal profession and follows with case law examples from diverse areas, including legal ethics, criminal procedure, constitutional law, torts, evidence, and the business of law. The book closes with a case study of the Enron fiasco, an argument that the lawyer-judge bias has contributed to the overweening complexity of American law, and suggests some possible solutions.
The 2006 U.S. Supreme Court decision in Garcetti v. Ceballos imposed significant new restrictions on the First Amendment freedom of speech rights of public employees. Specifically, the Garcetti majority held that the First Amendment did not provide any protections for internal or external communications made in the course of performing their official duties. The 2014 case of Lane v. Franks provided the U.S. Supreme Court the opportunity to decide whether the U.S. Court of Appeals for the Eleventh Circuit properly denied First Amendment protection for testimony given by an employee of an Alabama community college who testified during a federal public corruption trial. The U.S. Supreme Court, by a vote of 9 to 0, held that Garcetti did not block the employee from proceeding with a claim that the community college retaliated against him for his trial testimony. The U.S. Supreme Court recognized a public corruption testimony exception to Garcetti.
Whistleblower is a generic term used to describe someone that reports misconduct within their own agency or institution; or, as described in Miethe (1999, p. 11): "an employee or former employee who reports misconduct to persons who have power to take action". This includes reporting breaches of administrative policy, professional ethics, professional responsibilities, and also violations of the law. This chapter presents a discussion of the ethical obligations, policies, and laws associated with reporting misconduct by employees within the criminal justice system. This includes mention of the protections that are ostensibly afforded to those with the courage to come forward under such circumstances. These ideals are counter-balanced with discussions regarding the potential consequences to whistleblowers - personal, professional, and legal. This chapter closes with some hard-earned advice regarding the steps that a would-be whistleblower can take in order to achieve the best possible professional outcomes, as well as likely repercussions.
The significant contributions of whistleblowers towards the recent unravelling of LIBOR, money laundering and related scandals in various global banks are reminiscent of similar outcomes in the earlier Enron and WorldCom debacles. Employees and employers in the private sector in particular, despite rhetorical assurances by the latter, have not necessarily shared common interests where whistleblowing is concerned. Lawmakers and regulators in the United States, because of this, have designed whistleblowing rules at the state and federal level to provide protection to whistleblowers. To some degree, Sarbanes–Oxley (SOX) and the False Claims Act (FCA) together probably contributed to an enforcement regime combining anti-retaliation protection and financial incentives, which produced some results. The Dodd–Frank whistleblowing initiative that followed, in addition to enhancing internal reporting systems, also institutionalized the Office of the Whistleblower (OWB). Despite the enhanced flow of quality tips from all the US member states and other overseas economies to the Securities Exchange Commission (SEC), the institution has not issued a commensurate significant number of awards. This appears to suggest that the enforcement results may not have improved as intended. The apparent paucity of enforcement relative to tips secured has been attributed to the lack of SEC priority and the hesitation of potential whistleblowers because of lingering doubts and fears and anxieties over award outcomes. The recent US Supreme Court decision that whistleblower protection afforded by SOX extends to employees of contractors of public companies may, however, induce more potential whistleblowers to come forward. On the basis of the empirical studies, the UK’s Public Interest Disclosure Act 1998 (PIDA) is found to be grossly ineffective in promoting whistleblowing in the United Kingdom, as well as in affording adequate protection for workers principally because of various gaps and ambiguities located in the PIDA provisions. This article argues that because of the developments in the United States, it might be timely and appropriate for the SEC to consider a qui tam provision resembling that in the FCA, and to allow bounty payments for SEC non-monetary sanctions as further reforms. As courts and tribunals in the United Kingdom begin to interpret the newly enacted provisions of PIDA, further reforms could be envisaged. One good example is the call by the UK Whistleblowing Commission to authorize the Secretary of State to issue a code of practice to be taken into account by courts and tribunals when matters of whistleblowing arise.
This Article examines the two primary issues associated with the almost universal use by plaintiffs of confidential witnesses in class action securities litigation. The first issue is whether the information provided by such witnesses should be steeply discounted in light of a 2007 decision by the United States Supreme Court concerning the pleading of scienter in securities cases. The second issue is whether the identities of confidential witnesses should be discoverable in advance of trial. This Article concludes that: (1) courts should not discount information provided by confidential witnesses for use in securities fraud complaints if such information is accompanied by sufficient indicia of reliability; and (2) in general, the identities of confidential witnesses should not be discoverable unless the witnesses will testify at trial.
IntroductionAmong the many important contributions to the business ethics field provided by Richard T. De George is his discussion of the morality of whistleblowing. De George (2010), in his classic textbook Business Ethics, Although we refer to De George’s 7th edition of Business Ethics (2010), his criteria have not changed significantly from his 1st edition in 1982. provides a succinct analysis of the conditions under which external whistleblowing by employees (e.g., to the media, government regulators, or public interest groups) can be considered either morally permissible or morally obligatory. De George’s whistleblowing criteria have been referred to as: “important,” “famous,” having gained “widespread acceptance” (Lindblom 2007, pp. 414-415), representing the “standard theory” on whistleblowing (Davis 1996, p. 154), as well as “frequently cited in articles by other scholars” (Hoffman and McNulty 2010, p. 47).The topic of whistleblowing continues to be an important and challenging ...
Recent corporate scandals demonstrate that rank-and-file employees often remain silent in the face of significant fraud. This silence is unfortunate because corporate employees have inside knowledge of misconduct that gives them an information advantage over more traditional corporate monitors, such as independent directors and government regulators. To address this problem, the Sarbanes-Oxley Act utilized a new approach that encourages employee whistleblowers to disclose information about corporate wrongdoing. This approach, which Professor Richard Moberly labels the "Structural Model," requires that corporations provide a standardized channel for employees to report organizational misconduct to official monitors within the corporation. This Article offers an original framework for analyzing the effectiveness of Sarbanes-Oxley's Structural Model. Utilizing behavioral science research that analyzes whistleblower motivations, Professor Moberly finds that the Structural Model reduces difficulties corporate employees experience in disclosing misconduct, and thereby provides an improved mechanism to encourage employees to become more active and effective corporate monitors. However, the Structural Model has significant flaws, which Professor Moberly addresses by offering several suggestions for improving the model's usefulness as a tool against corporate crime.
The Federal False Claims Act serves an important function in detecting and deterring fraud upon the government of the United States. By enlisting the public as private prosecutors in such actions, the statute *678 ensures heightened enforcement and obtains compensation for losses sustained by the federal government as a result of fraudulent activity. The monetary incentives provided by the statute encourage reporting of wrongful activity and provide compensation for the sacrifices typically sustained by whistleblowers. Thus, the qui tam provisions of the FCA bring to light wrongful conduct that might never be discovered or addressed without the ability of private citizens to benefit financially from filing suit.The FCA, however, is also rife with problems that stem from the overlap of criminal and civil law generated by the statute. Traditional distinctions between criminal and civil law are blurred by the provisions of the FCA, which allow for private individuals to enforce public laws without having suffered injury from the wrongful conduct. By encouraging private parties to maintain punitive actions on behalf of the public good, the FCA blurs the line between criminal and civil law. Further, in the context of actions brought against corporate defendants, the penalties available in FCA civil suits are identical to those available in criminal prosecutions. Thus, the ability of individuals to enforce the provisions of the FCA through qui tam suits results in a near-complete overlap between criminal and civil law.Yet, despite this overlap, the FCA fails to safeguard the rights of corporate defendants in FCA actions. By failing to provide procedural safeguards available in criminal actions and furnishing no incentive to private plaintiffs to exercise discretion in filing suit, the FCA places far too much power in the hands of individuals. Simple changes to the statute would address these concerns and ensure fair and just application of the FCA. By returning the burden of proof to the clear and convincing standard in place prior to the 1986 amendments to the FCA and requiring greater government oversight of qui tam actions, Congress would ensure that the statute adequately roots out fraud upon the federal government, while providing protection against the unfairness currently embodied within the statute's terms.
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N.J. Stat. Ann. § 34:19-3 (West 2000).