An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements

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.

PDF

More in this Issue

Critical Inquiry: A Tool for Protecting the Dissident Professor’s Academic Freedom

This comment concerns the Sixth Amendment Confrontation Clause and seeks to justify why courts consistently find an autopsy report not subject to the right to confrontation under the new test created by the Supreme Court in Crawford v. Washington. The current test turns on a statement’s classification as “testimonial”; testimonial statements require confrontation, but non- […]

The Myth of International Delegation

There is a growing and misinformed sense in some quarters that the United States and other countries have engaged (and continue to engage) in delegations to international institution that involve a significant threat to domestic sovereignty. Concerns about such delegations come from academics (John Yoo: “Novel forms of international cooperation increasingly call for the transfer […]

Learning from the Recent Interpretation of INA Section 245(a): Factors to Consider When Interpreting Immigration Law

In 1994, Congress passed the Violence Against Women Act (VAWA 1994). VAWA 1994 established the self-petitioning process, which permits undocumented battered victims to adjust their immigration status to Legal Permanent Residents (“LPRs”) in the United States without the aid or knowledge of the abusive spouse. In VAWA 2000, Congress added certain abused immigrants to those […]

Keeping Imports Safe: A Proposal for Discriminatory Regulation of International Trade

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers […]

Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African […]

Mourning Miranda

The article presents new field research about police interrogation tactics and training and discusses that research in light of recent social science literature and judicial decisions. Professor Weisselberg argues that the safeguards of Miranda v. Arizona have become ineffective””not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of […]