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8. Research: State whistleblower protection statutes
To begin a discussion of the differences discussed in the text, encourage students to look for
different laws in your state or laws of other states where they have lived or would like to live.
Montana Wrongful Discharge Statute, Questions, p. 65
1. How would the Milton case (p. 50) have been decided had this law been in effect in
Maryland?
While tax fraud does not fall within the realm of "public policy" in the Montana law, Milton
could argue he was not fired for “good cause” - unless his complaints were seen to “disrupt the
How would Dr. Pierce (p. 57) have fared under it?
Dr. Pierce could argue she was "constructive[ly] discharge[d]," for her "refusal to violate public
policy." However, the definition of public policy as "established by constitutional provision,
statute, or administrative rule," is not open-ended enough to encompass professional ethical
How would Michael Winston (p. 62) have fared?
Michael Winston could argue he was "constructive[ly] discharge[d]," for his "refusal to violate
public policy or for reporting a violation of public policy.” The incident involving his report to
2. What parts of this law seem to benefit employees?
The employee who refuses to be a bystander while wrongdoing takes place is protected. The one
who is expected to join in the wrongdoing or be fired is also protected. The law establishes a
What parts of this law seem to benefit employers?
Unless an employee can fit her case inside the provisions of this statute, there will be no recovery
under the common law. (No cause of action for implied contractual promises or in tort, for
3. Why do you think state laws fail to protect whistleblowers who turn to the media first?
Does this seem like sound policy? Does it encourage or discourage ethical behavior?
Students will likely have different views regarding whether protection should be extended to
whistleblowers that first turn to the media and its impact on ethical behavior. Most people,
including lawmakers, would likely agree that a dissatisfied employee should provide the
BLOWING THE WHISTLE FOR FOOD SAFETY
Ken Kendrick and the Peanut Corporation of America, Questions, p. 66
1. If you were in Kendrick’s shoes, what ethical issues might you confront?
Ethical issues include the fraud against customers, work safety and potentially deadly health
2. Which issues would you raise with management? How assertively?
3. Which outside agencies, organizations and/or defrauded customers would you tell?
Explain.
Again, answers will vary. Students concerned with the health and safety issues may consider
contacting OSHA or the CDC (Center for Disease Control) because of the potentially deadly
*****
Kendrick did raise issues safety/salmonella issues inside the plant. Based on a potential
Questions (p. 66)
1. If you were Kendrick, what would you do now?
Students will likely have the same answers they had in Question 3 above. This may include
contacting OSHA or the CDC. Some may suggest that the potential client needs to be contacted
2. If you were Kendrick’s supervisor, what would you do?
Student answers will vary. The supervisor would be facing the same ethical issues as
Kendrick. As a supervisor, he or she may feel greater concern for the employees of the
*****
Kendrick anonymously alerted customers and the Texas department of health in what he
Questions (p. 67)
1. What does “I need my job and would be fired very quickly for telling you this,
but I have some ethics left” mean to you? In Kendrick’s shoes, what lines would
you resist crossing?
Students should recognize the conflict between the obligation to one’s self and family versus the
2. Given that attention from the salmonella outbreak did not mention the Texas
plant; would you say something about it? Why or why not? If so, to whom?
Would you go public?
Due to the severity of the outbreak, most students will likely say they would report the
*****
Kendrick sent numerous emails and went public in an effort to get the Texas plant closed.
When it happened, people in the community were angry because of the job losses.
Questions (p. 68)
1. Why is whistleblowing seen as a negative – like “snitching”? How do Kendrick’s
actions differ from those of a “prison snitch”? What might be a basis for
distinguishing between the right and wrong time to disclose negative
information?
Those negatively impacted by whistleblowing – in this case, plant employees and other members
of the community - are likely to see it as “snitching”. Those who are protected by it – in this
case, PCA customers and the public at large – should see it in a different light.
The actions of a “prison snitch” generally are done out of self-interest only. One could argue,
2. Should managers want employees to report negative information to their
supervisors? If so, what could they create to encourage this?
Managers should want employees to report negative information to their supervisors,
giving the company the opportunity to correct issues before they get out of hand or go
3. In cases where whistleblowing supports a public good, what changes should be
made in social perception, media, and/or public policy to encourage people to do
the right thing?
The media should recognize and celebrate whistleblowers who act on behalf of the public
good, without consideration of the personal impact. Public policy already offers some
FOOD SAFETY MODERNIZATION ACT OF 2010
Ask the class to discuss why they think the Act only covered the FDA jurisdiction and
failed to include the food items controlled by the Secretary of Agriculture.
ANTI-WHISTLEBLOWER LAWS
“Ag Gag” and Food Integrity, Questions, p. 71
1. Research: Find the Utah and Iowa statutes. Do they contain the three provisions
mentioned in the article? Has there been any litigation related to either law?
Have additional Ag Gag laws been based in other states since 2013?
The website http://www.foodsafetynews.com/ provides numerous articles about food
Additional articles about the Iowa law include:
Utah articles regarding the law and litigation include:
2. Research: Who funds ALEC? What is its operating budget? What is its stated
philosophy? What other legislative templates has ALEC drafted?
The official site of the American Legislative Exchange Council is: http://www.alec.org/
3. Research: Who funds GAP? What is its operating budget? What is its stated
philosophy? What kinds of initiatives is GAP now pursuing?
The official site of the Government Accountability Project is:
4. Consider how ethical theory would apply to Ag Gag. Who are the stakeholders?
How would the passage of Ag Gag laws look through the lens of free market ethics?
Utilitarianism? Deontology? Virtue Ethics? The Ethics of Care?
Stakeholders in the Ag Gag controversy include consumers, agriculture firms, farmers, meat
Free market ethics is based on the concept that the overriding goal of any corporation is to
make a profit as long as it is done within the legal and ethical bounds of society. The passage of
Because of its focus on all who are affected by a decision, utilitarian analysis would likely lead
to a decision to oppose Ag Gag laws. The benefit to proponents of the laws may not outweigh
One could argue that human, civil and animal rights activists are a type of community who have
The ethic of care is concerned with maintaining significant relationships. There are several to be
PUBLIC EMPLOYEES AND FREEDOM OF SPEECH
Garcetti v. Ceballos, Questions, p. 77
1. Where public employee speech is found to be pursuant to official duties, it lacks First
Amendment protection. How does the majority argue in favor of this new
requirement? What arguments do dissenters make for alternative methods of analysis?
Justice Kennedy delivered the opinion of the Court and held that government employers need to
maintain significant control over their employees in order to efficiently provide public services.
Justice Stevens raised the point that this rule gives employees an incentive to avoid speaking
frankly with their supervisors and encourages they to voice their concerns publicly instead.
2. What values are most prominent for Justice Kennedy with the majority? For Justice
Stevens in dissent? What values are framed in the dissent led by Souter? What value
does Breyer mention?
Justice Stevens' dissent discusses precluding speech that a supervisor would prefer that no one
Dissent led by Justice Souter involves these values: approachability, attentiveness, awareness,
SIDEBAR: The case was heard twice before the Supreme Court. The first time, former Justice
Sandra Day O'Connor was on the bench. The next argument occurred in March 2006 after
Justice Samuel Alito Jr. was elevated to the Court. Justice Alito cast the fifth vote against
Ceballos.
3. Whistleblowing by a Public Employee
b. It appears that, based on the interpretation of the Mississippi courts, Garcetti does given
4. Free Speech Scenarios
a. Massey’s Energy Upper Big Branch Mine
Determining whether the employee spoke as a citizen on a matter of public concern.
With the number of deaths and mine collapses in the recent past, the information from the
The question becomes whether the government employer had an adequate justification
for treating the employee differently from any other member of the public. This
So long as employees are speaking as citizens about matters of public concern, they must
Free Speech Claim: Succeeds
b. Football Coach
Determining whether the employee spoke as a citizen on a matter of public concern. It
could be argued that a public school budget is a matter of concern as it deals with tax
The question becomes whether the government employer had an adequate justification
for treating the employee differently from any other member of the public. The budgeting
So long as employees are speaking as citizens about matters of public concern, they must
Free Speech Claim: Most likely fails
Miami Dade Community College
Determining whether the employee spoke as a citizen on a matter of public concern. As
in the prior example, the use of public monies by the college may raise this to a public
concern. If not, then this claim fails. At the same time, it is this employee’s job to address
potential illegalities within the system and so was not speaking as a citizen but was doing
her primary job.
Free Speech Claim: Fails
Sgt. Mills and the demotion
Determining whether the employee spoke as a citizen on a matter of public concern. The
number of crime prevention officers in total is a public concern but the number of officers
who report through Sgt. Mills is not. If the reassigned officers were no longer on crime
prevention, it is a matter of public concern. At the same time, supervising officers was a
primary duty of Sgt. Mills and so internal discussions about the office structure would be
part of her job.
Free Speech Claim: Did not pass initial threshold questions and fails.
