An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements
This Comment analyzes the arguments both for and against strict report recipient requirements. This analysis reveals that neither an external nor an internal report recipient requirement provides sufficient protection to whistleblowing employees, who face a very real threat of retaliation.9 Studies indicate that whistleblowers choose their report recipient based on a wide variety of practical considerations—including the employee’s status in an organization, the status of the wrongdoer, the organization’s culture, and the significance of the wrongdoing. A rigid report recipient requirement—whether external or internal—cannot match the diversity of situations in which employees find themselves. An unduly restrictive reporting requirement therefore inevitably leaves many good-faith whistleblowers unprotected.
In order to avoid unjust denials of protection, this Comment proposes that states adopt a more open-ended report recipient standard. More specifically, states should provide protection to employees who report either internally to a supervisor or externally to a government body so long as the employee possessed both a subjectively and objectively reasonable belief that the recipient could correct the employer’s unlawful behavior. State laws should also extend protection to employees who report to the media or to other third parties via the Internet when certain conditions are met. This flexible standard would more accurately reflect the variety of situations confronting employees. In addition, the reasonableness requirement would protect employers’ interest in avoiding meritless lawsuits from “chronic complainers”12 and would promote society’s interest in effective law enforcement.