Yves here. I have to confess that I didn’t know that legal protection for whistleblowers is a relatively new development.
By Elizabeth C. Tippett, Associate Professor, School of Law, University of Oregon. Originally published at The Conversation
When was the last time you agreed to keep a secret?
Perhaps it was a personal confidence shared by a close family member or friend. Or it might have been in a contract with your employer to safeguard confidential information. Either way, you probably felt a strong sense of obligation to keep that secret.
At least when it comes to the workplace, that’s no accident. In the United States, the idea that workers owe their employers a duty of loyalty goes back more than 100 years. It is deeply ingrained in legal rules and American culture.
But it has been fraying, most recently in the form of former Trump lawyer Michael Cohen’s damning congressional testimony against the president.
This trend was also on full display when the #MeToo movement went viral in 2017. #MeToo was, of course, about sexual harassment and assault. But it was also a form of mass whistleblowing. The movement signaled victims’ willingness – at an unprecedented scale – to defy promises of secrecy to their employers in service of a larger truth by revealing their experiences of workplace harassment.
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.
Employee Fealty
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.
This duty is also why American courts were slow to protect whistleblowers for disclosing information that betrayed their employer but protected the public interest. As recently as the 1980s, most state courts did not recognize an employee’s right to protest or expose illegal or harmful conduct.
In a 1982 case in Texas, a nursing home fired a nurse’s aid who complained when her boss refused to call a doctor for a patient suffering a stroke. Unmoved by the nurse’s efforts to save the patient, the court dismissed the employee’s case.
A Shift Toward Protecting Whistleblowing
In recent decades, however, courts and lawmakers in the United States have shifted away from prioritizing an employer’s right to loyalty and toward reaping the public benefits of whistleblowers.
As legal scholar Richard Moberly documented, the U.S. Supreme Court has been remarkably consistent in recent decades in protecting private sector whistleblowers. Congress has moved in the same direction, taking on whistleblower protections in major federal legislation, including the Affordable Care Act and the Dodd-Frank financial reform statute.
Indeed, the righteousness of whistleblowers has become a rare matter of bipartisan consensus. In 2017, every lawmaker in both the House and Senate voted in favor of a law expanding whistleblower protections for federal employees.
Over the last 10 years, even social media posts have been recognized as a form of whistleblowing. In 2011, the National Labor Relations Board, which regulates unionization and collective bargaining in the United States, declared that social media posts are legally protected if their aim is to mobilize others to address workplace issues.
To its credit, the labor relations board realized that many important workplace discussions now happen over social media.
#MeToo crosses the Rubicon
The #MeToo movement did not represent a tidal wave of recent harassment – many of the revelations were years old. What made it historic was the way so many women were willing to publicly expose their employer and thus cross the Rubicon to whistleblower status.
It was a combination of online and offline whistleblowing. A number of the women who disclosed information to the media against Harvey Weinstein and other prominent men did so in defiance of contracts they signed promising secrecy. The millions of others who posted on social media may have also theoretically risked breach of contract claims – although Title VII of the Civil Rights Act offers a form of whistleblower protection.
The political response to #MeToo has also tended to treat it as a whistleblower story. Few of the enacted state laws or proposed federal laws alter existing rules regarding workplace harassment. Instead, these bills have primarily sought to make it harder for U.S. employers to keep harassment secret.
The End of Loyalty?
Employees are increasingly willing to defy employer demands for secrecy involving immoral, illegal or harmful conduct. And when they do speak up, lawmakers and courts are increasingly willing to back them up.
The #MeToo movement might be the first mass whistleblower event. But it’s probably not the last, which means we should expect the duty of loyalty to fall further from the legal pedestal on which it once stood.
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Some thoughts.
1. There is a huge difference between legitimate confidentiality requirements regarding trade secrets and proprietary business information versus hiding dirty laundry. Similarly, a real non-compete agreement should be for critical staff and where that employee would be compensated for not using their skill set to compete with the former employer. I think courts have been less likely to allow companies to enforce non-compete clauses where the company gets no competition and the former employee got nothing in return.
2. The 1950s to early 80s was a period of massive transition in the workplace where minorities and women went from being just support staff cleaning floors and typing documents to having the same opportunities on the career ladder as white men. A lot was tolerated during that era because just being there in the first place was a huge step forward.
3. Once the mass move to viewing employees as disposable units of production really kicked into high gear in the 1980s, then part of the social contract was broken by the corporations. Why would loyalty regarding dirty laundry just be a one-way street? Why would you put up with a crappy situation knowing the company was just as likely to terminate you in the next merger or because the CFO is having a bad day?
4. There is now a critical mass of people who now have up to decades of experience in a workplace that still has elements that do not realize it is not the 1950s anymore. That critical mass has started speaking out and we are seeing it with MeToo and other movements. I think this will improve the workplace over the next decade as people look up from their desk and realize that the workplace really needs to be for everybody. The people who believe it is still the 1950s are starting to become a minority – still powerful, but the group is shrinking so they can be sidelined without collapsing the business or industry which was not the case in the 1980s.
5. I think the whistle blowers for things like bad financial dealings are different. There are cycles where misdeeds are viewed as normal and other periods where they are viewed as abnormal and should be rooted out. Unfortunately, we appear to be in a period where institutionalized greed and corruption is tolerated and so whistle blowers will be popping up because it is the only way something will be put in the sunshine. In periods where ethical behavior is more expected, then there is usually less need for whistle blowers and they become aberrations related to outlier organizations.
I think that part of the reason that 1. is important is that many companies have forces a larger percentage of employees to sign non-compete agreements. The reduction in the legitimacy of those agreements as they are applied to a larger number of people (sandwich makers at Jimmy John’s? Seriously?) means that people are more willing to violate them and courts less likely to enforce them.
As for 5. Yeah, sometimes the fraud becomes so endemic that people forget that they are supposed to hide it. Witness the latest arbitration case revolving around the show “Bones” between the creators and Fox.
Is “business” now the state?
Is the social contract now disintegrating?
i think the social contract is disintegrating. i look at the failures of institutions all over, the failure of laws, the fraying bonds between families and communities, and sometimes despair.
Disintegrating, or being disintegrated? I see it as the latter.
both, it’s too chaotic to be fully planned. at some point we reach (if we haven’t already) a tipping point.
We are at the point in the evolution of our society that contracts can override laws, contracts can create rights that did not exist before, and therefore contracts are laws. It is the libertarians’ dream come true.
It used to be that courts would not enforce contract terms that were against public policy, or were unconscionable. I cannot think of one example of a contract term that a judge would find unenforceable today.
Can anyone else think of one?
(Specifically, I meant a class of contract terms. Non-competes are sometimes enforceable, liability waivers are sometimes enforceable, etc. Can’t think of any that are never enforceable)
Contracts to commit illegal actions are not enforceable.
Unconscionable contracts are unenforceable when there is what is called “procedural unconscionability” as well as severely unbalanced substance (“substantive unconscionability”). That is when the party seeking to avoid application of the contract was unduly pressured into signing, such as a pushy sales person that does not provide time to review the terms.
However, generally speaking the attitude is that the parties should be bound to the agreement they reached absent a good reason to the contrary. Maybe it’s wrong but the basic notion here seems to be that the courts are not responsible for policing a misguided bargain, only a bargain that’s beyond the pale. That’s not an unreasonable view I feel–it really should be legislation that takes the lead on deciding what contracts are intolerable and unenforceable.
So, presumably, the idea is that there are some “choices” that no-one should have to face. Ethically. For instance, Sophie’s Choice. Or whether to buy needed healthcare or feed one’s kids. Etc. (I think neoliberalism throws up endless “choices” like this). I think these illegitimate choices are precisely what social democracy and socialism tried to eliminate. I do not see how “legislation” in the modern neoliberal “democracies” can be expected to have any proper grip on the idea of such choices, as it insists that bedrock is “free to choose.” So your answer is at most halfway there.
I’ve always said the big bucks are dished out based on the secrets to be kept more than skill or knowledge. Skill or knowledge doesn’t matter if one isn’t trusted to be one of the team and keep secrets. Many times they make the decision based on your name.
Compensation packages in the hundreds of millions indicates a holder of secrets.
Most businesses are structurally patterned after and essentially identical to an authoritarian dictatorship; pure top-down hierarchy totally ruled over by a dictatorial dear leader. Why this is tolerated and even celebrated in a democratic society that demonizes the exact same attributes in a political system, I’ve never understood.
What the author doesn’t mention: in normal human relations, loyalty is a two-way relationship. When employers stopped showing loyalty to workers (I think this turn happened mostly in the 1980s), workers took way too long to adjust to the new reality but slowly the culture changed.
Also most American workers have now spent their whole working lives in a workforce characterized by precariousness and just aren’t as cowed by the threat of firing.
There is a sad corollary in personal lives due to the pernicious influences of social media. While a good in so many ways, media platforms also facilitate a perverse type of discipline on and among those willing adherents. IOW, tow the party line and all will be okay but deviate and we, whoever we may be, know secrets to punish you. Keep divulging the content to monetize, whether by overt or covert parties.
Combine that blunt instrument of enforcement with a populace that has become less informed about social contracts over the years and you have an updated version of the Stasi from the old DDR. Now there are still volunteers, at least for the time being.
That was my first thought as well. If it’s assumed that workers must be loyal to an employer then why is the employer able to lay off thousands of workers at will with no repercussions?
We may have whistleblower protections now but I don’t see that they are very often upheld.
Only thing I see changing that is stronger unions. Solidarity!
Thanks for saying that.
Yes, Solidarity!
Speaking of “duty of loyalty” some people today are leaving their jobs without giving two weeks notice. Loyalty is a quaint concept today in the workplace. The original Wall Street Journal article was behind a paywall so I got their syndicated abridged copy from the Philadelphia Inquirer. The comments section is mostly in favor of quitting with no notice.
https://www.philly.com/jobs/labor/these-workers-quit-their-jobs-without-two-weeks-notice-20181222.html
But future potential employers can ask that question (not much more), so really why would you do that barring extreme circumstances? Literally why would you burn bridges you don’t have to burn, unless everything is on fire (including maybe you getting fired) anyway?
All so much bravado, and devil may care. And justified as “because employers sometimes do that to employees”. That’s a moral answer to what is not a moral question. It’s a practical question and it comes down to basic understanding of power imbalance. Employers and potential employers have a lot of power, employees or potential employees don’t. Pretending it is otherwise is cruising for a bruising. All in the name of pride which comes before … real experience with capitalism, and unemployment etc. etc. Organize yes, but don’t personally self-sabotage out of stupid.
When I was working on my Masters I had to take a business law class for which I wrote a paper on at-will employment in the DMV area. DC has the strongest protections followed by Maryland, and then Virginia. I wrote the paper because I had an employer that claimed to be an “at-will” employer and I had never heard the term before. That former employer was scrupulous in making sure that their procedures didn’t create any exceptions. You could walk past a person’s desk and they could be there one day and gone the next. Exceptions are things like having a probationary employment period or promising due process in discipline and prior to termination. I found out in my class research that some states can also have legal exceptions like a public interest exception for reporting an employer for violating the law or discrimination for race or sex.
I wonder if the revolving-door syndrome also served to break down the concept of duty of loyalty to employers. This might be seen in a high official in the EPA going to work for a major industry that he had been supervising, an admiral or general going to work for a defense contractor that he had been negotiating contracts with or even the head of say the SEC going to work for a Wall Street firm and getting his son a job there as well. It has been going on for decades of course but maybe this was a source of employee/employer bonds being broken down. Short term money trumped long term employer loyalty which opened the way for whistleblowers.
As a former whistleblower who had to fight-off retaliation — and eventually won — I enjoyed reading the comments above. The Duty of Loyalty should be a two-way street. Instead it has been used as a cudgel, only observed when breached by the employee.
Solidarity!