Silencing Whistleblowers By Contract

In 2015, the corporate world was jolted as the Securities and Exchange Commission brought forth the first of a series of enforcement actions against employer-mandated confidentiality agreements to silence would-be whistleblowers. KBR Inc. (“KBR”) was the first to incur SEC sanctions for contractually restricting its employees from becoming whistleblowers by requiring them to seek internal approval before making any external disclosures. Contractual restrictions on SEC whistleblowing are made unlawful by Dodd-Frank's Rule 21F-17, which bars any actions taken to impede potential whistleblowers from reporting wrongdoing to the SEC. Lying dormant until the KBR action, Rule 21F-17 now provides the SEC with an active enforcement mechanism through which the agency regularly penalizes employers for imposing similar restrictions. Although it is now clear from a regulatory standpoint that such confidentiality agreements violate the law, Rule 21F-17 is void of any guidance or explanation as to a much thornier question -- whether employers may lawfully restrict their employees from turning over to the SEC internal, confidential documents that support their whistleblowing disclosures. Case law interpreting Rule 21F-17 is similarly lacking. While incorporating the results of a request made by the author under the Freedom of Information Act (“FOIA”) pertaining to the Dodd-Frank whistleblower submission process and frequency of use, this Article is the first scholarly attempt to fill this void in the law. By integrating law from related legal doctrines, including contract law, employment law, and False Claims Act case law, this Article proposes regulatory amendments to Rule 21F-17 that balance the employer's concerns of safeguarding confidential documents with the whistleblower's need for providing documentary support of their claims and in furtherance of public policy. Such clarifications to the law will not only allow the SEC and future courts to point to a clear mechanism to determine the lawfulness of such transmissions, but will, most importantly, provide advance guidance to whistleblowers as to the boundaries of relying on documentary support in their revelations of wrongdoing.

A qualitative analysis of societal silences, demonstrating how the unsaid directs social action and shapes individual and collective lives.

This book examines how insufficient policies can lead to the alleged abuse of power in organisations. When independent ethical structures and processes are missing or weak, practices of abuse, misconduct and cover-ups can easily arise at the leadership level. Even organisations that specialise in good governance are no exception, as illustrated by this case study on arguably the world’s most influential anti-corruption NGO, Transparency International (TI). Written by the former Managing Director of Transparency International, this book chronicles its ethical breakdown over a 5-year period starting in 2015. By comparing TI’s whistleblower policies with its internal whistleblower practices, it demonstrates how the organisation gradually became trapped in a vicious cycle of secrecy, corruption and lies. The author chronologically tracks TI’s practices, drawing on 12 whistleblower complaints filed with TI since 2017, as well as communications with TI, international donor agencies, and other international civil society organisations from 2015 to 2020 to do so. The chronological format aptly reveals the snowball effect that ethical weaknesses can create over time, as well as the emotional warfare that whistleblowers are typically subjected to. The unfolding chronology also shows what it means to be a whistleblower for an organisation that avoids public transparency, reporting on and scrutiny of its own practices.

Numerous statutes and the tort of wrongful discharge purport to prohibit companies from retaliating against employee whistleblowers. However, whistleblowers often lose retaliation lawsuits because these statutory and common law tort protections depend upon a variety of nuanced factors, such as the employer for whom the whistleblower works, the kind of wrongdoing reported, the way in which the employee blew the whistle, and, under some laws, the willingness of an administrative agency to investigate the whistleblower's claim. Given these difficulties, this Article explores an alternate route for whistleblower protection: enforcing the existing contract protections that private employers currently provide employees when they report misconduct. Rules recently enacted by the major stock exchanges now require each publicly traded company to publish a Code of Business Conduct and Ethics promising not to retaliate against employees. These Code anti-retaliation promises potentially provide broader whistleblower protection than statutory and tort protections, and enforcing the Codes contractually could address the weaknesses of these traditional remedies. This Article highlights the benefits of breach of contract claims based on corporate Codes, addresses the potential difficulties that whistleblowers may face when asserting such claims, and presents possible solutions to these problems.

UPDATED IN MARCH 2013 to include the historic $104-million Bradley Birkenfeld whistleblower case and more! From the nation’s leading whistleblower attorney, comes the third edition of the first-ever consumer guide to whistleblowing. In The Whistleblower’s Handbook, Stephen Martin Kohn explains nearly all federal and state laws regarding whistleblowing. In the step-by-step bulk of the book, he also presents twenty-one rules for whistleblowers.

First introduced in the United States, whistleblower laws have become increasingly popular around the world. This book illustrates the regional efforts undertaken by European organizations to promote whistleblower protection in Europe. To provide context, the first part of the book presents an overview of the international best practices for whistleblowing legislation and explores the status of whistleblower under international law. It also assesses the global hot topics regarding whistleblowing, from the cases of Edward Snowden and Julian Assange to the silencing of whistleblowers during the COVID-19 pandemic. The following parts focus on the European approach to whistleblower laws. It illustrates the influence of the Council of Europe in putting whistleblower protection on the European agenda and discusses the European Court of Human Rights’ case law on whistleblowing under Article 10 of the European Convention on Human Rights. In the final part, the author analyzes the evolution of the European Union’s approach to whistleblowing and the legal significance of the EU Whistleblower Directive adopted in 2019. In the respective parts, the author also examines the effectiveness of the international organizations’ own internal rules on whistleblowing, from the United Nations and the World Bank Group to the Council of Europe and the European Union.

Whistleblowing, Communication and Consequences offers the first in-depth analysis of the most publicized, and morally complex, case of whistleblowing in recent European history: the Norwegian national lottery, Norsk Tipping. With contributions from the whistleblower himself, as well as from key voices in the field, this book offers unique perspectives and insights into not only this fascinating case, but into whistleblowing and wrongdoing in organizations more broadly. An international team of scholars use fourteen different theoretical lenses to show the complex and multi-faceted nature of whistleblowing. The book begins with an ethnographic account by the whistleblower story and proceeds into an analysis of the literature and conceptual topics related to that whistleblowing incident to present the lessons that can be learnt from this extreme example of institutional failure. This fascinating, complex, and multi-theoretical book will be of great interest to scholars, students and industry leaders in the areas of public relations, corporate communication, leadership, corporate social responsibility, whistleblowing and organizational resistance. The Open Access version of this book, available at http://www.tandfebooks.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

The courageous acts of whistleblowing that inspired the world over the past few years have changed our perception of surveillance and control in today's information society. But what are the wider effects of whistleblowing as an act of dissent on politics, society, and the arts? How does it contribute to new courses of action, digital tools, and contents? This urgent intervention based on the work of Berlin's Disruption Network Lab examines this growing phenomenon, offering interdisciplinary pathways to empower the public by investigating whistleblowing as a developing political practice that has the ability to provoke change from within.

"A new roadmap for understanding the diverse perspectives and disparate bodies of law involved in any legal regime aimed at encouraging people in organisations to speak up about wrongdoing, making it possible for them to do so, and supporting and protecting them when they do. More than just a rich and readable history of whistleblowing laws, in the USA and around the world. Steeped in Robert Vaughn's personal experience as a lawyer and researcher over a 40 year period, this book stands to help solve some of the greatest conundrums in this vital area of legal regulation - one of the most complex in modern society, but one of the most crucial to integrity, accountability and organisational justice in all institutions. Compulsory reading for all policymakers, regulators, corporate leaders, researchers and activists engaged in improvement and implementation of public interest whistleblowing laws." - A.J. Brown, Griffith University and Transparency International Australia "Unlike other books on whistleblowing that simply describe and analyze whistleblowing laws, Robert Vaughn's new book provides an in-depth and unique historical account of the roots of the whistleblowing movement in such disparate events as the Mai Lai massacre, the civil rights movement, and the experiments of Stanley Milgrim. As important, he then uses that history to illuminate the competing perspectives and pressures that influenced the passage and interpretation of modern whistleblower laws. Vaughn provides a first-rate account of the varied and complex reasons for the successes and failures of these laws during the last forty years." - Richard Moberly, University of Nebraska College of Law, US Drawing on literature from several disciplines, this enlightening book examines the history of whistleblower laws throughout the world and provides an analytical structure for the most common debates about the nature of such laws and their potential successes and failures. The author explores the relationship between the actions of whistleblowers and the character of laws protecting them, as well as their administration and enforcement. The book considers the role of civil society groups in the successes of whistleblower laws and how current controversies reflect issues attached to these laws over half a century. This study contains perspectives from which successes and failures can be evaluated and will appeal to policy makers, scholars, whistleblower advocacy and other civil society groups, as well as anyone with a general interest in the subject.

An authoritative account of the Duke lacrosse team rape case illuminates the ever-widening gap between America's rich and poor, and demonstrates how far the powerful will go to protect themselves.