Citizen employees

Louisiana Law Review

Volumn 70, Issue 1, 2009, Pages 246-312

  Carlson, Richard R ^a  

^a South Texas College of Law   (United States)

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EID: 73849100031     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (403)

1. Justice Souter has used a similar phrase, "citizen servants, " to describe public employees dedicated to the public interest. Garcetti v. Ceballos, 547 U. S. 410 (2006) (Souter, J., dissenting).
2. 29 U. S. C. § 157 (2006).
3. Time Magazine named renowned whistleblowers Sherron Watkins, Cynthia Cooper, and Coleen Rowley the "Persons of the Year" for 2002. Richard Lacayo & Amanda Ripley, Persons of the Year 2002: The Whistleblowers, TME, Dec. 30, 2002, at 30.
4. Looking only at federal laws, and excluding employment laws that provide anti-retaliation protection in their enforcement provisions, there are at least nineteen citizen employee protective laws, including the American Recovery and Reinvestment Act of 2009.
5. See CARLSON'S FEDERAL EMPLOYMENT LAWS ANNOTATED 637 (2008). If one adds enforcement provisions of federal employment laws like Title VII, which prohibits retaliation against an employee who has "opposed" unlawful employment practices, 42 U. S. C. § 2000e-3 (2006), the total is somewhere between twenty and thirty, depending on one's definition of "citizen employee" and one's interpretation of some federal statutes. For a collection of such employment discrimination statutes and their anti-retaliation provisions
6. see CARLSON'S FEDERAL EMPLOYMENT LAWS ANNOTATED 540 (2008)
7. As for state laws, Texas may be a fair example of what one might find in most states (and on the whole Texas tends to be quite conservative in the creation of employee rights). In Austin v. Healthtrust, Inc., 967 S. W.2d 400 (Tex. 1998), the Texas court listed fifteen laws that fit the definition of citizen employee protective laws, but the list was illustrative, not exhaustive. If Texas is representative, as I believe it is, there are hundreds of state citizen employee protective laws.
8. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 806, 116 Stat. 745 (codified as amended in scattered sections of 15 & 18 U. S. C.).
9. American Recovery & Reinvestment Act of 2009, Pub. L. No. 111-5, § 1553, 123 Stat. 115, 296-97.
10. See, e.g., National Defense Authorization Act for Fiscal Year 2008, Pub. L No. 110-181, 122 Stat 3, 241-42 (amending 10 U. S. C. § 2409 (2006)).
11. Crawford v. Metro. Gov't of Nashville & Davidson County, 129 S. Ct. 846 (2009) (Title VII's "opposition" clause prohibits retaliation against an employee whose statement to employer's own investigators corroborates another employee's allegation of harassment);
12. Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) (statute prohibiting "discrimination on the basis of age" against federal employees implicitly includes prohibition against retaliation);
13. CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951 (2008) (Reconstruction Era civil rights law guaranteeing that all persons shall have the same right "to make and enforce contracts... as is enjoyed by white citizens" implicitly includes a prohibition against retaliation against those who complain of violations of this provision);
14. Burlington N. & Santa Fe Ry. Co. v. White, 548 U. S. 53 (2006) (regarding what adverse actions violate an explicit anti-retaliation provision in federal employment discrimination law);
15. Jackson v. Birmingham Bd. of Educ., 544 U. S. 167 (2005) (finding that a federal prohibition against discrimination in education implicitly prohibits employer retaliation against employees who report such discrimination);
16. Garcetti v. Ceballos, 547 U. S. 410 (2006) (First Amendment does not protect public employees whose speech is pursuant to their official duties).
17. 548 U. S. 53 (2006).
18. Id. at 67 (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 (1960)). In Jackson, the Court adopted a test for what constitutes unlawful retaliation by an employer. Justice Breyer's majority opinion held that an employer violates the anti-retaliation provision of Title VII if it takes action that might dissuade a reasonable employee from making or supporting a charge of discrimination.
19. Id. at 66-69.
20. 544 U. S. 167 (2005).
21. Title IX of the Education Amendments of 1972 §901, 20 U. S. C. §1681 (2006).
22. Jackson, 544 U. S. at 180-81.
23. 129 S. Ct. 846 (2009).
24. Id. at 848.
25. See infra pp. 20-22.
26. See infra pp. 10-11.
27. Richard Moberly, Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win, 49 WM. & MARY L. REV 65 (2007) [hereinafter Moberly, Unfulfilled Expectations].
28. Jackson, 544 U. S. at 172-74.
29. See also, e.g., the Energy Reorganization Act, which protects an employee only if he reports a violation of the Energy Reorganization Act. 42 U. S. C. § 5851 (2006).
30. A whistleblower provision of the Water Pollution Control Act protects an employee only if he reports a violation of the Water Pollution Control Act. 33 U. S. C. § 1367 (2006).
31. For example, the Texas Whistleblower Act protects only state and local employees in the state of Texas. TEX. GOV'T CODE § 554.002 (Vernon 2004 & Supp. 2009).
32. The federal Whistleblower Protection Act protects only employees of the federal government. 5 U. S. C. §§ 1213-1215 (2006).
33. The anti-retaliation provision of the Financial Institutions Reform, Recovery and Enforcement Act, 12 U. S. C. § 1831j (2006), protects only employees of certain types of financial institutions.
34. A Texas law protects a nurse only if she files a complaint with a particular regulatory board. TEX. OCC. CODE ANN. § 301.413 (Vernon 2004 & Supp. 2009).
35. See also Groce v. Eli Lilly & Co., 193 F.3d 496 (7th Cir. 1999) (interpreting Indiana Occupational Safety Act whistleblower provision);
36. Ball v. Memphis Bar B Q, 228 F.3d 360 (4th Cir. 2000)
37. (employee unprotected under Fair Labor Standards Act retaliation provision, 29 U. S. C. §215 (2006), because he complained of alleged FLSA violations only to his employer and not to the U. S. Department of Labor).
38. See, e.g., Dep't of Natural Res. v. Heller, 892 A.2d 497 (2006);
39. Austin v. Healthtrust, Inc., 967 S. W.2d 400 (Tex. 1998).
40. See, e.g., N. Y. LAB. LAW § 740 (McKinney 2002 & Supp. 2009).
41. Romero v. UHS Westwood Pembroke, Inc., 893 N. E.2d 355 (2008).
42. See, e.g., Bregin v. Liquidebt Sys., 548 F.3d 533 (7th Cir. 2008) (interpreting Indiana law);
43. Ed Rachal Found. v. D'Unger, 207 S. W.3d 330 (Tex. 2006) (per curiam).
44. There are many statutes such as Section 15 of the Fair Labor Standards Act that protect employees who testify in administrative or judicial proceedings involving the enforcement of a particular law.
45. See, e.g., 29 U. S. C. § 215 (2006). However, most jurisdictions appear to lack any general rule protecting employees against retaliation or discrimination for taking time off from work to serve as witnesses, which is why Section 15 is necessary and aids at least those employees who serve as witnesses in federal wage and hour proceedings.
46. Compare CAL. LAB. CODE § 230 (West 2003 & Supp. 2009) (prohibiting discrimination or retaliation against an employee who takes time off in order to respond to a subpoena or court order to appear as a witness, evidently applying to any type of judicial or quasi-judicial proceeding)
47. with HAW. REV. STAT. ANN. § 378-32 (LexisNexis 2004 & Supp. 2007) (prohibiting discrimination against an employee who testifies in a proceeding relating to Hawaii's employment laws), and
48. MINN. STAT. ANN. § 611A.036 (West 2003 & Supp. 2008) (employer must not discriminate against employee who takes time off from work at a prosecutor's request or in response to a subpoena in certain criminal proceedings). Statutes such as these seldom distinguish between discrimination based on the substance of an employee's testimony versus discrimination based on the loss of working time. Presumably, witness protection statutes apply to both types of discrimination.
49. See also Reilly v. City of Atl. City, 532 F.3d 216 (3rd Cir. 2008) (regarding First Amendment protection for public employees serving as witnesses).
50. See N. M. STAT. Ann. § 12-10C-3 (West Supp. 2008) & ME. REV. STAT. ANN. tit. 26, §809 (2007).
51. See, e.g., Sabine Pilot Serv. v. Hauck, 687 S. W.2d 733 (Tex. 1985).
52. See, e.g., 31 U. S. C. § 3730 (h) (2006) (False Claims Act anti-retaliation provision).
53. See, e.g., Section 8 (a) (1) of the National Labor Relations Act, 29 U. S. C. § 158 (a) (1) (2006), which makes it unlawful for an employer to "interfere" with employee rights under that Act.
54. *2-3 (W. D. Ky. 2009).
55. Jackson v. Birmingham Bd. of Educ, 544 U. S. 167, 180-81 (2005).
56. Id. at 173-81.
57. See also Gomez-Perez v. Potter, 128 S. Ct. 1931, 1939 (2008).
58. CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951, 1955 (2008) ("our conclusion rests in significant part on stare decisis").
59. The Court recalled Section 1981 's convoluted history of judicial interpretation and congressional response, culminating in amendments in 1991 that validated a line of court decisions suggesting that Section 1981 implicitly prohibited retaliation.
60. Id. at 1955-58.
61. Crawford v. Metro. Gov't of Nashville & Davidson County, 129 S. Ct. 846, 850 (2009).
62. Gomez-Perez, 128 S. Ct. at 1931.
63. 547 U. S. 410 (2006).
64. Id. at 410.
65. See infra p. 63.
66. Id. at 421.
67. Id. at 423.
68. See RICHARD CARLSON, EMPLOYMENT LAW 684-88 (2d ed. 2009) [hereinafter CARLSON, EMPLOYMENT LAW].
69. HORACE GAY WOOD, A TREATISE ON THE LAW OF MASTER & SERVANT §134, at 272 (Albany, N. Y., J. D. Parsons, Jr. 1877).
70. See, e.g., Walker v. AT & T Tech., 995 F.2d 846, 849 (8th Cir. 1993);
71. Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1444 (7th Cir. 1992).
72. See generally CARLSON, EMPLOYMENT LAW, supra note 43, at 684-88.
73. Montana is the only state that has enacted a statute abrogating the employment-at-will doctrine. MONT. CODE ANN. § 39-2-904 (1) (2007).
74. Some employees, particularly in the public or collective bargaining sectors, enjoy varying measures of protection against discharge at will. Collective bargaining agreements typically require just cause for discharge, and many public employees are protected by administrative civil services schemes.
75. See, e.g., 5 U. S. C. §§ 7501-7543 (2006), establishing a Merit Systems Protection Board to hear federal employee challenges to disciplinary discharges and other adverse actions. However, as of 2003 only eight point two percent of private sector employees were union members.
76. BUREAU OF LABOR STATISTICS, U. S. DEPT. OF LABOR, UNION MEMBERS IN 2003, http://www.bls.gov/pub/news.release/union2-01212004.txt. Public sector employees constitute about sixteen point one percent of the workforce.
77. See BUREAU OF LABOR STATISTICS, Industry at a Glance: Government, http://www.bls.gov/iag/government.htm (last visited on Oct. 23, 2006).
78. Brockmeyer v. Dun & Bradstreet, 335 N. W.2d 834, 841 (Wis. 1983) (employment-at-will serves the employer's need for "sufficient flexibility to make needed personnel decisions in order to adapt to changing economic conditions");
79. James W. Hubbell, Retaliatory Discharge and the Economics of Deterrence, 60 U. COLO. L. REV. 91, 98 (1989).
80. Hubbell, supra note 46, at 99-100;
81. Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 957 (1984).
82. Hubbell, supra note 46, at 98-99.
83. CARLSON, EMPLOYMENT LAW, supra note 43, at 21, 254-55, 525-26.
84. See Kyung M. Song, Out of Work and Feeling the Pain, SEATTLE TIMES, June 23, 2004
85. quoted in CARLSON, EMPLOYMENT LAW, supra note 43, at 683-84.
86. Id.
87. Jackson v. Birmingham Bd. of Educ., 544 U. S. 167, 181-82 (2005).
88. See also Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment, 53 DUKE L. J. 1619, 1641-42 (2004) (regarding the tendency of firms to conceal information about the nature and extent of the environmental hazards of their businesses).
89. See Richard E. Moberly, Sarbanes-Oxley's Structural Model to Encourage Corporate Whistleblowers, 2006 BYU L. REV. 1107, 1117-19 (2006) [hereinafter Moberly, Structural Model];
90. Douglas M. Branson, Too Many Bells? Too Many Whistles? Corporate Governance in the Post-Enron, Post WorldCom Era, 58 S. C. L. REV. 65, 78-79 (2006).
91. Bruce D. Fisher, The Whistleblower Protection Act of 1989: A False Hope for Whistleblowers, 43 RUTGERS L. REV. 355, 355-57 (1991).
92. See, e.g., John Crawly, Watchdog Says FAA, Southwest Ties Too Close, REUTERS, Apr. 3, 2008 (describing the role of employee whistleblowers within the Federal Aviation Administration and private airline companies in revealing the FAA's badly compromised oversight of airline maintenance);
93. Shameful Silence/Failure to Protect Teenage Inmates from Staff Sexual Abuse Demands Texas Youth Commission Shake-Up, HOUSTON CHRON., Mar. 2, 2007, at B10.
94. William E. Forbath, The Ambiguities of Free Labor: Labor and Law in the Gilded Age, 1985 WIS. L. REV. 767, 796 (1985) (describing the company town system in which "the corporation often owned everything from church and school to houses and stores");
95. Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 250-54 (1996) (describing employer efforts to exercise control over employee lifestyle during the early twentieth century, including matters of marital life, personal hygiene, attendance at approved churches, and of course union membership);
96. Ariela J. Gross, "The Caucasian Cloak": Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest, 95 GEO. L. J. 337, 356 (2007) (describing agricultural communities in the Southwest resembling "company towns").
97. See also Marsh v. Alabama, 326 U. S. 501, 508-09 (1946) (noting the large number of workers in the bituminous coal industry working in company towns at that time and invoking the First Amendment to prevent an employer-owner of a company town from restricting free speech on the town's sidewalks).
98. See, e.g., Reilly v. City of Atl. City, 532 F.3d 216 (3rd Cir. 2008) (public employer allegedly retaliated against employee based on the content of his testimony as a witnesses). The First Amendment may protect public employees in such cases, id., but the First Amendment does not apply to private sector employees.
99. According to one recent survey of employers, more than half of responding employers complained that employee jury service disrupted production and caused other hardship. Employers Nationwide Polled on Jury Service, NEW YORK STATE JURY POOL NEWS, Fall 2005, at 4, available at http://www.nyjuror.gov/ general-information/jpn-pdfs/jpnfall05.pdf.
100. See, e.g., In re Bregar, 485 F. Supp. 2d 897 (N. D. Ill. 2007);
101. S. C. Toof & Co., 833 S. W.2d 896 (Tenn. 1992).
102. At a minimum, these costs include searching for and training a replacement, the effect of termination on morale of the remaining workforce, and the effect on the employer's unemployment compensation experience rating.
103. See, e.g., 29 U. S. C. § 623 (2006) (prohibiting age discrimination);
104. 42 U. S. C. § 2000e-2 (2006) (prohibiting discrimination on the basis of race, color, national origin, sex and religion);
105. 42 U. S. C. § 12112 (2006) (prohibiting discrimination on the basis of disability).
106. Even if the employer's motive is not one of the specifically prohibited motives, nearly any involuntary discharge can lead to a charge of unlawful discrimination. If so, the employer will be compelled to "articulate" its motive. Burdine v. Tex. Dep't of Cmty. Affairs, 450 U. S. 248 (1981). If the employer's motive was "nondiscriminatory" but otherwise socially offensive, it may be reluctant to reveal its motive in a public hearing. A judge, jury, or government agency might regard the employer's difficulty in explaining a challenged action as evidence of an illegal motive.
107. See St. Mary's Honor Ctr. v. Hicks, 509 U. S. 502 (1993).
108. See Larry Ribstein, Sarbox: The Road to Nirvana, 2004 MICH. ST. L. REV. 279, 285 (2004).
109. See Robert Walters & Michael Marin, Jury of Our Peers: An Unfulfilled Constitutional Promise, 58 SMU L. REV. 319, 331 (2005) (reporting that people earning less than $35, 000 annually were especially likely to experience action by their employers to discourage them from jury service).
110. See Moberly, Structural Model, supra note 53, at 1120;
111. James Fanto, Whistleblowing and the Public Director: Countering Corporate Inner Circles, 83 OR. L. REV. 435, 460 (2004).
112. See Moberly, Structural Model, supra note 53, at 1108;
113. ROBERT BRYCE, PIPE DREAMS: GREED, EGO, AND THE DEATH OF ENRON 246-47 (2003).
114. Moberly, Structural Model, supra note 53, at 1120;
115. BETHANY MCLEAN & PETER ELKIND, THE SMARTEST GUYS IN THE ROOM: THE AMAZING RISE AND SCANDALOUS FALL OF ENRON 296 (2003).
116. Daniel Wagner & Rasha Madkour, Questioning Stanford's Returns Could Get You Fired, ASSOCIATED PRESS, Feb. 20, 2009.
117. Id.
118. Dahleen Glanton, Ex-Employees Tell of Filthy Conditions at Georgia Peanut Processing Plant, L. A. TIMES, Feb. 5, 2009, http://articles.latimes.com/2009/feb/05/nation/na-peanut5.
119. Note, After the Fall: The Cigarette Papers, the Global Settlement, and the Future of Tobacco Litigation, 49 S. C. L. REV. 311, 324-25 (1998).
120. Jerry W. Markham, Accountants Make Miserable Policemen: Rethinking the Federal Securities Laws, 28 N. C. J. INT'L L. & COM. REG. 725, 750-51 (2003).
121. Moberly, Structural Model, supra note 53, at 1119-20.
122. See Tetuan v. A. H. Robins Co., 738 P.2d 1210, 1223-24 (Kan. 1987) (affirming an award of punitive damages against the company).
123. United States v. Hopkins, 53 F.3d 533, 535-36 (2d Cir. 1995).
124. Alex Berenson, Ely Lilly Said to Play Down Risk of Top Pill, N. Y. TIMES, Dec. 17, 2006, § 1, at 1.
125. Alex Berenson, Lilly Settles with 18, 000 Over Zyprexa, N. Y. TIMES, Jan. 5, 2007, at Cl.
126. Glanton, supra note 70.
127. There are some laws that sweeten the rewards for whistleblowers by providing bounties for successful whistleblowing. See, e.g., the False Claims Act, 31 U. S. C. §3730 (2006).
128. See, e.g., Lawrence Blades, Employment at Will v. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967);
129. Andrew Moriss, Exploding Myths: An Empirical and Economic Reassessment of the Rise of Employment at Will, 59 MO. L. REV. 679 (1994);
130. Jay M. Feinman, The Development of the Employment at Will Rule, 20 AM. J. LEGAL HIST. 118 (1976);
131. Sanford M. Jacoby, The Duration of Indefinite Employment Contracts in the United States and England: An Historical Analysis, 5 COMP. LAB. L. J. 85 (1982).
132. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 253 (codified as amended at 42 U. S. C. §§ 2000e-2000e-17 (2006)).
133. During the late nineteenth century, for example, the federal government and many state governments treated public employment as a means for providing for the welfare of veterans. U. S. Office of Personnel Management, Vet Guide Appendix D: A Brief History of Veterans Preference, http://www.opm.gov/veterans/ html/vghist.asp (last visited Oct. 25, 2009). After the Civil War, they enacted laws that assured veterans a unique special right to public employment unless and until they gave good cause for discharge.
134. See, e.g., State v. Bd. of Chosen Freeholders of Burlington County, 44 A. 963 (N. J. Sup. Ct. 1899).
135. 1 DUMAS MALONE & BASIL RAUCH, EMPIRE FOR LIBERTY 444 (1960).
136. Developments in the Law-Public Employment, 97 HARV. L. REV. 1619, 1629-30 (1984).
137. WOOD, supra note 44, § 136 ("With us, the rule is inflexible that a general or indefinite hiring is, prima facie, a hiring at will....").
138. Public Employment, supra note 84, at 1629-30;
139. 2 MALONE & RAUCH, supra note 83, at 130. Congressional endorsement of a limited merit system of appointments arrived with the Civil Service Act of 1883, ch. 27, 22 Stat. 403 (restricting discharge of federal employees only when motivated by failure to contribute money or services to a political party).
140. Prior to President Hayes' order, there was one other federal law that superficially protected political appointees from arbitrary discharge. The Tenure of Office Act, ch. 154, 14 Stat. 430 (1867), barred the President from acting without the Senate's consent in removing officials whose appointment was with the advice and consent of the Senate. The Act was Congress' effort to weaken President Andrew Johnson in political battles over the progress of the post-Civil War Reconstruction. Ironically, it stood as an impediment to President Hayes' efforts to appoint officials dedicated to a true civil service. Congress repealed the Tenure of Office Act in 1887. Act of Mar. 3, 1887
141. ch. 353, 24 Stat. 500.
142. See 2 MALONE & RAUCH, supra note 83, at 14, 17-19, 130-31, 136.
143. See also Myers v. United States, 272 U. S. 52 (1926).
144. Exec. Order No. 101 (1897);
145. Public Employment, supra note 84, at 1630-31. Congress endorsed administrative protection against arbitrary discharge of federal employees in the Lloyd-LaFollette Act of 1912, ch. 389, § 6, 37 Stat. 539, 555.
146. See United States ex rel. Taylor v. Taft, 203 U. S. 461, 464-65 (1906).
147. But see Lellmann v. United States, 37 Ct. Cl. 128 (1902) (upholding right of wrongfully discharged civil service employee to recover back pay after administrative order of reinstatement).
148. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended at 5 U. S. C. §§ 1201-2305 (2006)).
149. Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 32 (codified at 5 U. S. C. §§ 1211-1219, 1221, 1222, 3352 (2006)).
150. See, e.g., People ex rel. Brant v. MacLean, 11 N. Y. S. 559 (1890) (describing and interpreting a law of the city of New York, requiring notice of proposed reason for discharge and an opportunity to answer);
151. People ex rel. Campbell v. Hannan, 10 N. Y. S. 71 (1890) (describing a civil service law of the city of Troy, New York).
152. See Cornelius J. Peck, Unjust Discharge from Employment: A Necessary Change in the Law, 40 OHIO ST. L. J. 1, 8-9 (1979).
153. See Pickering v. Board of Ed. of Township High Sch. Dist. 205, 391 U. S. 563 (1968). However, the Supreme Court's recent decision in Garcetti limited First Amendment protection for state and local government employees by denying protection for speech pursuant to official duties.
154. See supra p. 8 and infra p. 63;
155. Paul Secunda, Whither the Pickering Rights of Federal Employees?, 79 U. COLO. L. REV. 1101 (2008).
156. When courts dismiss employee claims they find to be without merit, they frequently add that employee protective laws do not authorize employees, juries, or judges to substitute their business judgment for that of the employer.
157. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
158. See, e.g., Midland Indep. Sch. Dist. v. Watley, 216 S. W.3d 374 (Tex. App. 2006);
159. Magnetti v. Univ. of Md., 909 A.2d 1101 (Md. Ct. Spec. App. 2006);
160. Ball v. Ark. Dep't of Cmty. Punishment, 10 S. W.3d 873 (Ark. 2000);
161. Messiha v. State, 583 N. W.2d 385, 390 (N. D. 1998);
162. MacDonald v. Univ. of N. C. at Chapel Hill, 263 S. E.2d 578 (N. C. 1980).
163. The First Amendment has sometimes supplied judicial authority, comparable to judicial authority to declare and refine the common law, for purposes of creative judicial remedies for public sector employees. However, the Supreme Court's Garcetti decision significantly diminished the usefulness of the First Amendment as a source of protection in the public sector workplace.
164. See supra p. 8 and infra p. 63.
165. See, e.g., Vulcan Last Co. v. State, 217 N. W. 412 (Wis. 1928) (upholding the criminal conviction of an employer for threatening employees to vote in favor of a particular proposition);
166. People v. Chicago, M. & St. P. Ry. Co., 138 N. E. 155 (Ill. 1923) (upholding the constitutionality of part of an 1891 Illinois election law requiring employers to provide time off from work to vote; but holding unconstitutional another part that required an employer to compensate the employee for such time). @See also MASS. GEN. LAWS ANN. ch. 56, § 33 (West 2007) (showing origin of election law protecting employees in 1852).
167. See supra note 97.
168. See supra p. 14.
169. See infra p. 26.
170. The idea that organizing workers into a boycott might be against the public interest actually began to mature in a different kind of setting: a union's boycott or other organized action against an employer. For much of the nineteenth century and into the early twentieth century, judges sometimes upheld civil conspiracy claims and even criminal charges against labor unions for organizing employees to interfere with the free market. Some judges targeted even peaceful picketing and other strike activity by labor unions on general public policy grounds, for threatening the public interest by seeking to interfere with the employment of nonmembers, or by attempting to manipulate the labor market. Richard R. Carlson, The Origin and Future of Exclusive Representation in American Labor Law, 30 DUQ. L. REV. 779, 791-803 (1992). However, until the enactment of antitrust and unfair trade statutes in the late nineteenth century, there was no consensus about the circumstances under which a boycott organized by a union or any other entity might be illegal or contrary to public policy.
171. 81 Tenn. 507 (1884).
172. Id. at 1.
173. Id.
174. Id. at 5-6. See also Heywood v. Tillson, 75 Me. 225 (Me. 1883), rejecting a cause of action for a plaintiff, who was the owner of a rental house, against the defendant, who was the principal employer on the island where the house was located. The owner of the house alleged that the employer refused to employ anyone who would rent the plaintiff's house, although no one would likely want the house unless they were employed by the defendant. In dismissing the complaint, the court cited Payne. Other cases upholding an employer's right to limit the business dealings of its employees include Union Labor Hosp. Ass'n v. Vance Redwood Lumber Co., 112 P. 886 (Cal. 1910) and Lewis v. Huie-Hodge Lumber Co., 46 So. 685 (La. 1908).
175. Payne, 81 Tenn. at 16.
176. Wesley v. Native Lumber Co., 53 So. 346 (Miss. 1910) (recognizing cause of action for merchant against employer who ordered employees not to do business with him); Int'l & G. N. Ry. Co. v. Greenwood, 21 S. W. 559 (Tex. Civ. App. 1893). Eventually, state legislatures responded to one aspect of the problem by enacting statutes prohibiting company stores, although these laws did not necessarily grant employees effective remedies. See, e.g., Commonwealth v. Hillside Coal Co., 58 S. W. 441 (Ky. 1900) (describing a Kentucky company store law). Many of these company store laws remain on the books today. See, e.g., TEX. LAB. CODE § 52.041 (Vernon 2006 & Supp. 2009).
177. William Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 58 (1999);
178. Calvert Magruder, A Half Century of Legal Influence Upon the Development of Collective Bargaining, 50 HARV. L. REV. 1071, 1084, n. 50 (1937).
179. See, e.g., Bradley v. Pierson, 24 A. 65 (Pa. 1892) (rejecting a claim that blacklisting was unlawful).
180. 35 So. 873 (Miss. 1904).
181. Id. at 874.
182. 37 S. W. 343 (Tex. 1911).
183. Id. at 344.
184. Id. at 345.
185. 178 So. 894 (Ala. 1938).
186. It was then a crime in Alabama to commit adultery, although the legislature had abolished any civil action for the injured spouse. See Young v. Young, 184 So. 187 (Ala. 1938).
187. 201 F.2d 123 (10th Cir. 1953).
188. Id. at 127. See also Christy v. Petrus, 295 S. W.2d 122 (Mo. 1956) (law making it a misdemeanor to discriminate against workers' compensation claimant did not create private cause of action for discharged employee).
189. See, e.g., St. Louis Sw. Ry. Co. of Tex. v. Hixon, 137 S. W. 343 (Tex. 1911) (applying Texas anti-blacklisting law); Commonwealth v. Reinecke Coal Min. Co., 79 S. W. 287 (Ky. 1904) (upholding Kentucky's anti-blacklisting law); State ex rel. Scheffer v. Justus, 88 N. W. 759 (Minn. 1902) (upholding constitutionality of Minnesota's anti-blacklisting law); State v. Kreutzberg, 90 N. W. 1098 (Wis. 1902) (invalidating Wisconsin statute prohibiting discharge of an employee for membership in a labor organization).
190. 236 U. S. 1 (1915).
191. See also Adair v. United States, 208 U. S. 161 (1908) (invalidating a similar federal law).
192. O'Neil v. Providence Amusement Co., 108 A. 887 (R. I. 1920);
193. In re Opinion of the Justices, 108 N. E. 807 (Mass. 1915).
194. 301 U. S. 1 (1937).
195. 29 U. S. C. §§ 151-169 (2006). Section 8 (a) (1) of the Act, 28 U. S. C. § 158 (a), makes it unlawful for an employer to "interfere with, restrain or coerce employees" who exercise their rights to join or form unions or to engage in collective bargaining. Section 8 (a) (4) of the Act, 29 U. S. C. § 158 (a) (4), makes it unlawful for an employer to "discharge or otherwise discriminate against an employee because he has filed charges or given testimony" under the Act.
196. 29 U. S. C. §§ 201-218 (2006). Section 15 of the Act, 29 U. S. C. § 215, makes it unlawful for an employer "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in any such proceeding...."
197. See 29 U. S. C. §§ 151 (NLRA), 202 (FLSA) (2006).
198. The FLSA prohibits retaliation against any employee, not just an employee who sought his own unpaid wages. 29 U. S. C. § 215 (2006). See also Onken v. W. L. May Co., 300 F. Supp. 2d 1066 (D. Or. 2004). The NLRA allows any person to file a charge. See ROBERT GORMAN & MATTHEW FINKJN, BASIC TEXT on LABOR LAW 10 (2d ed. 2004).
199. See 29 U. S. C. §§ 158 (a) (3) (NLRA), 215 (a) (3) (FLSA) (2006).
200. The NLRA prohibits "discrimination in regard to... any term or condition of employment." 29 U. S. C. § 158 (a) (3) (2006). The FLSA makes it unlawful for an employer to discharge "or in any other manner discriminate" against an employee who has engaged in protected conduct. See also Hernandez v. City Wide Insulation of Madison, Inc., 508 F. Supp. 2d 682 (W. D. Wis. 2007).
201. See, e.g., Harris v. Forklift Sys., Inc., 510 U. S. 17 (1993).
202. 29 U. S. C. § 158 (a) (l) (2006).
203. GORMAN & FINKIN, supra note 128, at 149-54.
204. Id.
205. See supra pp. 23-24.
206. J. Res., 76th Cong., § 3, 54 Stat. 858, 859 (1940). The Selective Training and Service Act was not entirely unprecedented. U. S. government employees have enjoyed the right of job restoration after active military duty since World War I. Act of May 12, 1917, 40 Stat. 72. See also Ballf v. Kranz, 82 F.2d 315 (9th Cir. 1936).
207. The current version of the law is the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U. S. C. §§ 4301-4333 (2006).
208. This belief is reflected in the statement of purpose in the current version of the law, USSER, which is: (1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; [and] (2) to minimize the disruption to the lives of persons performing service in the uniformed services... by providing for the prompt reemployment of such persons upon completion of such service...." 38 U. S. C. §4301 (a) (2006).
209. Employees who did not serve in the armed service were burdened under these laws because they were subject to dismissal or loss of opportunities for promotion as a result of job restoration of employees returning from service.
210. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 285 (1946).
211. 344 P.2d 25 (Cal. 1959).
212. Id. at 26.
213. Id. at 27.
214. Id.
215. Id. at 27.
216. ARTHUR CORBIN, CORBIN on CONTRACTS §§ 1373-1378, 1154-71 (1952).
217. Courts that apply a common law public policy rule of wrongful discharge now generally recognize the cause of action as a tort. See, e.g., Foley v. Interactive Data Sys., Inc., 765 P.2d 373 (Cal. 1988) (en banc).
218. The authorities cited by the court involved the issue of whether an employer could assert the forfeiture of an employee's contingent deferred compensation by discharging the employee without cause. Id. at 28.
219. Westlaw lists more than 276 court decisions and hundreds of listed appellate briefs, court memoranda, and secondary legal sources citing Petermann as of February 10, 2009.
220. Mark A. Fahleson, The Public Policy Exception to Employment at Will-When Should Courts Defer to the Legislature, 72 NEB. L. REV. 956, 964 (1993).
221. Among the unique and potentially distinguishable circumstances of Petermann was that the defendant employer was a labor organization, the case involved Petermann's right to union membership as well as employment, and the law required the union to follow principles of democratic governance in its
222. The few California cases relying on Petermann did so in connection with statutes that seemed by their very terms to prohibit employers from interfering with certain rights of employees. Glenn v. Clearman's Golden Cock Inn, Inc., 13 Cal. Rptr. 769 (Cal. Dist. Ct. App. 1961) (applying statute that provided that employees engaged in organizational or collective bargaining activities "shall be free from the interference, restraint, or coercion of employers").
223. Cal. Rptr. 171 (Cal. App. 1960).
224. Id at 174.
225. Id. at 175.
226. A few courts of other states that considered Petermann before the late nineteen seventies pointedly rejected it. See, e.g., Geary v. U. S. Steel Corp., 319 A.2d 174 (1974).
227. See Blades, supra note 80.
228. Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 253 (1964) (codified as amended at 42 U. S. C. §§ 2000e-2000e-15 (2006)).
229. See sources cited supra note 195.
230. Pierce v. Ortho Pharm. Corp., 417 A.2d 505 (N. J. 1980).
231. See, e.g., Galati v. Am. W. Airlines, Inc., 69 P.3d 1011, 1013 n. 2 (Ariz. 2003).
232. N. J. STAT. ANN. § 34:19-8 (West 2000 & Supp. 2008).
233. See also Tartaglia v. UBS PaineWebber, Inc., 961 A.2d 1167 (N. J. 2008).
234. 5 U. S. C. § 2302 (2006).
235. But see Secunda, supra note 93.
236. 5 U. S. C. §§ 7513-7543 (2006).
237. See, e.g., Emery v. Ne. Ill. Reg'l Commuter R. R. Corp., No. 02 C 9303, 2003 WL 22176077 (N. D. Ill. Sept. 18, 2003) (finding no federal "common law" of retaliation and rejecting a retaliation claim under the Federal Employers Liability Act).
238. For Title VII's anti-retaliation provision, see 29 U. S. C. § 2000e-3 (2006). For the Age Discrimination in Employment Act of 1967
239. see 29 U. S. C. § 623 (d) (2006). For the Americans with Disabilities Act of 1990
240. see 42 U. S. C. § 12203 (a) - (b) (2006).
241. At least one major employment discrimination law of the era lacked a clear protection against retaliation. The Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 390 did not contain its own express prohibition against retaliation. However, the Rehabilitation Act incorporated by reference certain enforcement provisions of Title VII. 29 U. S. C. § 794a (2006). The courts interpreted this link to Title VII as including Title VII's prohibition against retaliation.
242. See, e.g., Hoyt v. St. Mary's Rehab. Ctr., 711 F.2d 864, 867 (8th Cir. 1983).
243. For the anti-retaliation clause of the Occupational Safety and Health Act of 1970
244. see 29 U. S. C. § 660 (c) (1) (2006). For the Employee Retirement Income Security Act of 1974
245. see 29 U. S. C. § 1140 (2006). For the Family and Medical Leave Act of 1993
246. see 29 U. S. C. § 2615 (2006). For the Migrant and Seasonal Agricultural Worker Protection Act of 1983
247. see 29 U. S. C. § 1855 (2006). For the Immigration Reform & Control Act of 1986 (prohibiting discrimination on the basis of national origin)
248. see 8 U. S. C. § 1324b (a) (5) (2006). For the Employee Polygraph Protection Act of 1988
249. see 29 U. S. C. § 2002 (4) (2006).
250. The Worker Adjustment and Retraining Notification Act (WARN) of 1988, 29 U. S. C. §§ 2101-2109 (2006), which requires an employer to provide advance notice of impending layoffs, is one example of an employee rights statute that does not include anti-retaliation protection. Anti-retaliation protection might have seemed unnecessary because the principle beneficiaries of the WARN Act-employees about to be laid off-are about to lose their jobs whether or not they complain. Still, one can imagine another employee who acted to report or prevent his employer's false assertion of an excuse for a lack of notice based on "circumstances that were not reasonably foreseeable."
251. See 29 U. S. C. § 2102 (b) (2) (A) (2006). Because the WARN Act lacks an anti-retaliation provision, such an employee evidently would not be protected from retaliation. Still another federal employment law that appears to lack protection against retaliation is the Federal Employers' Liability Act. 45 U. S. C. §§ 51-60 (2006).
252. See, e.g., Ball v. Memphis Bar B Q, 228 F.3d 360 (4th Cir. 2000) (interpreting one of the oldest anti-retaliation provisions
253. Section 15 of the Fair Labor Standards Act, 29 U. S. C. § 215 (2006), which prohibits retaliation against an employee who "has filed any complaint or instituted or caused to be instituted any proceeding").
254. 18 U. S. C. § 1514A (a) (2006).
255. See Dana Brakman Reiser, Enron.org: Whey Sarbanes-Oxley Will Not Ensure Comprehensive Nonprofit Accountability, 38 U. C. DAVIS L. REV. 205 (2004).
256. Moberly, Unfulfilled Expectations, supra note 18, at 33.
257. But see O'Mahony v. Accenture Ltd., 537 F. Supp. 2d 506 (S. D. N. Y. 2008) (publicly traded parent corporation could be named as defendant for actions of subsidiary if parent gave grounds for piercing corporate veil).
258. The Act protects an employee only if he reported a violation of 18 U. S. C. §§ 1341, 1343, 1344, or 1348, a rule or regulation of the Securities or Exchange Commission, or a federal law relating to fraud against shareholders. 18 U. S. C. § 1514A (a) (l) (2006). The mere possibility that reported "fraud" could adversely affect the company's financial condition, and thereby be adverse to shareholders, is not enough to qualify as the basis for protected reporting.
259. Moberly, Unfulfilled Expectations, supra note 18, at 35, 54-55.
260. See also Geoffrey C. Rapp, Beyond Protection: Invigorating Incentives for Sarbanes-Oxley Corporate and Securities Fraud Whistleblowers, 87 B. U. L. REV. 91, 110 (2007) (summarizing decisions of administrative law judges under SOX).
261. Van Asdale v. Int'l Game, Tech., 498 F. Supp. 2d 1321 (D. Nev. 2007)
262. 18 U. S. C. § 1541A (a) (l) (2006).
263. Getman v. Sw. Securitiers, No. 04-059 (ARB July 29, 2005) (unpublished opinion by the Administrative Review Board of the Department of Labor). The decision is described in Moberly, Unfilled Expectations, supra note 18, at 140-41.
264. Platone v. U. S. Dep't of Labor, 548 F.3d 322, 326 (4th Cir. 2008).
265. See CARLSON, EMPLOYMENT LAW, supra note 43, at 501-02.
266. See Moberly, Structural Model, supra note 53.
267. RESTATEMENT OF THE LAW (THIRD) EMPLOYMENT LAW, supra note 148, § 4.02.
268. See Hubbell, supra note 46, at 99-1 00;
269. Epstein, supra note 47, at 970-71.
270. See Brockmeyer v. Dun & Bradstreet, 335 N. W.2d 834, 844 (Wis. 1983) (Day, concurring);
271. Moberly, Structural Model, supra note 53, at 1156.
272. See, e.g., 42 U. S. C. § 1981a (2006) (capping an employer's liability for certain discrimination claims).
273. See Taken v. Okl. Corp. Comm., 125 F.3d 1366 (10th Cir. 1997) (imposing higher prima facie threshold for reverse discrimination claimant).
274. See Nieto v. L & H Packing Co., 108 F.3d 621, 623 (5th Cir. 1997) (describing the so-called "same actor" rule of discrimination law).
275. Kelsay v. Motorola, Inc., 384 N. E.2d 353, 362 (111. 1978) (Underwood, dissenting) ("Henceforth, no matter how indolent, insubordinate or obnoxious an employee may be,... [the] employer may thereafter discharge him only at the risk of being compelled to defend a suit for retaliatory discharge and unlimited punitive damages.").
276. See also Moberly, Structural Model, supra note 53, at 1156;
277. Hubbell, supra note 46, at 101.
278. See Sheila Foster, Causation in Antidiscrimination Law: Beyond Intent Versus Impact, 41 HOUS. L. REV. 1469 (2005).
279. See Moberly, Structural Model, supra note 53, at 1157, describing these arguments.
280. Id.
281. Id.
282. In a related vein, Professor Hubbell has argued that if anti-retaliation laws protect whistleblowing based on general perceptions of public policy (such as public safety), rather than specific laws or regulations, an employee might saddle an employer with defense costs and wrongful discharge liability based on rules not adopted by elected lawmakers and not preceded by advance notice to the employer.
283. Hubbell, supra note 46, at 112-13.
284. The same is true, however, when injured employees or consumers sue the employer in tort for accidents caused by unsafe but not illegal practices or conditions. Whistleblowing with respect to such conditions or products might actually save an employer from loss, on balance, if the whistleblowing forces the employer to take preventive measures. On the other hand, if whistleblowing is without merit, the employer's costs are limited to its defense of and liability for the wrongful discharge lawsuit, but only if the employer has taken adverse action against the whistleblower.
285. N. J. STAT. ANN. § 34:19-3 (West 2000 & Supp. 2008).
286. See annotations following N. J. STAT. ANN. § 34:19-3 (West 2000 & Supp. 2008).
287. This number is based on a March 2, 2009, search of the Westlaw database for decisions of state and federal courts of New Jersey using the term "Conscientious Employee Act."
288. This number is based on a March 2, 2009, search of the Westlaw database for decisions of state and federal courts of New Jersey using any of a series of terms including 'Title VII, " "Age Discrimination in Employment Act, " or "Americans with Disabilities Act." The actual number might be higher because some decisions might have referred only to a provision of state law against discrimination.
289. U. S. GOV'T ACCOUNTABILITY OFFICE, WHISTLEBLOWER PROTECTION PROGRAM: BETTER DATA AND IMPROVED OVERSIGHT WOULD HELP INSURE PROGRAM QUALITY AND CONSISTENCY, 4, 24 (2009), available at www.gao.gov/new.items/ d09106.pdf.
290. Equal Employment Opportunity Commission, Charge Statistics FY 1997 Through FY 2007, www.eeoc.gov/stats/charges.html (last visited Oct. 11, 2008).
291. See CARLSON'S FEDERAL EMPLOYMENT LAWS, supra note 4, at 656-736.
292. All employers are covered by the Occupational Safety and Health Act at a minimum.
293. See 29 U. S. C. §§ 651-678 (2006).
294. See, e.g., 18 U. S. C. § 1514A (2006) (the SOX anti-retaliation provision);
295. 28 U. S. C. § 1875 (a) (2006) (prohibiting intimidation or coercion of employees called to federal jury duty).
296. See Moberly, Structural Model, supra note 53, at 1158.
297. WHISTLEBLOWER PROTECTION PROGRAM, supra note 238, at 4.
298. See generally Moberly, Unfulfilled Expectations, supra note 18;
299. WHISTLEBLOWER PROTECTION PROGRAM, supra note 238, at 32-40. For one court's particularly disappointing view of the administrative process now known as the Department of Labor's Whistleblower Protection Program
300. see Flenker v. Willamette Indus., Inc., 967 P.2d 295 (Kan. 1998).
301. See Richard Carlson, The Small Firm Exemption and the Single Employer Doctrine in Employment Discrimination Law, 80 ST. JOHN'S L. REV. 1197 (2006).
302. See, e.g., EEOC v. AutoNation U. S. A. Corp., 52 F. App'x 327 (9th Cir. 2009).
303. 27 U. S. 526 (1999).
304. Burlington Indus., Inc. v. Elerth, 524 U. S. 742 (1998).
305. See supra p. 44.
306. The existing whistleblower protection program administered by the Department of Labor has received generally poor reviews, mainly because of its lack of resources.
307. See WHISTLEBLOWER PROTECTION PROGRAM, supra note 238 and Moberly, Unfulfilled Expectations, supra note 18.
308. See Palmateer v. Int'l Harvester, Inc., 421 N. E.2d 876, 884-85 (Ill. 1981) (Ryan, dissenting);
309. Ribstein, supra note 63, at 286.
310. See also Moberly, Structural Model, supra note 53, at 1157, describing these arguments.
311. See, e.g., Guyden v. Aenta, Inc., 544 F.3d 376 (2d Cir. 2008).
312. Romero v. UHS Westwood Pembroke, Inc., 893 N. E.2d 355, 359-60 (2008);
313. Ribstein, supra note 63, at 286.
314. See supra note 255.
315. Id.
316. Admittedly, there can be a difficult issue of whether an individual has a trait necessary to be a member of a protected class, particularly in cases under the Americans with Disabilities Act.
317. See 42 U. S. C. § 12102 (2006) (defining " disability").
318. See also Albertsons, Inc. v. Kirkinburg, 527 U. S. 555 (1999) (some conditions may or may not be disabilities, depending on the circumstances of each case). However, the ADA is exceptional among discrimination statutes in the difficulties it poses with respect to its definition of protected status.
319. 29 U. S. C. § 157 (2006).
320. Id §1140.
321. Id. § 2000e (j).
322. See supra p. 23.
323. 29 U. S. C. § 157 (2006).
324. Id. §151.
325. NLRB v. Wash. Aluminum Co., 370 U. S. 9, 15 (1962).
326. See, e.g., NLRB v. Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990) (denying protection for employees who secretly removed employer's records).
327. 29 U. S. C. §157 (2006).
328. See 29 U. S. C. §§ 159-161 (2006). Admittedly, seventy years after the enactment of the NLRA, neither management nor labor would likely agree that the system has been "practical."
329. Id.§215.
330. Id. (emphasis added).
331. Section 15 protects only employee action with respect to violations of "this chapter" (the FLSA). 29 U. S. C. § 215 (a) (3) (2006). It protects an employee who files a "complaint, " which some courts have interpreted to mean a formal written complaint to the government.
332. See, e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009) (complaint must be in writing);
333. Meredith-Clinevell v. Dep't of Juvenile Justice ex rel. Virginia, 344 F. Supp. 2d 951 (W. D. Va. 2004) (no protection for "internal" whistleblower whose complaint was to his own employer).
334. See, e.g., Meredith-Clinevell, 344 F. Supp. 2d 951.
335. Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993). A number of courts have found implicit protection for internal whistleblowers and claimants under Section 15.
336. See Hagan v. EchoStar Satellite, L. L. C., 529 F.3d 617, 625-26 (5th Cir. 2008).
337. But see Caci v. Wiz of Lake Grove, Inc., 267 F. Supp. 2d 297 (E. D. N. Y. 2003) (internal complaint unprotected);
338. Bell-Holcombe v. Ki, LLC, 582 F. Supp. 2d 761 (E. D. Va. 2008).
339. See RESTATEMENT (THIRD) OF EMPLOYMENT LAW, supra note 171, § 4.01 cmt. e.
340. Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 257 F. Supp. 2d 498 (D. P. R. 2003), reversed in part on other grounds, 375 F.3d 99 (1st Cir. 2004).
341. See also Hagan, 529 F.3d at 627-28;
342. McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir. 1996).
343. See cases cited supra note 268.
344. The author is unaware of any whistleblower or other citizen employee law that expressly states the exclusion.
345. See sources cited supra note 275.
346. 547 U. S. 410 (2008).
347. Id. at 421.
348. Id. at 423.
349. See, e.g., Lumsden v. Foster Farms, LLC, No. C07-5099RJB, 2008 WL 496137 (W. D. Wash. Feb. 21, 2008) (Connecticut public policy wrongful discharge law);
350. Cook v. CTC Commc'ns Corp., No. 06-cv-58-JD, 2007 WL 3284337 (D. N. H. Oct. 30, 2007) (USERRA anti-retaliation provision);
351. Schumann v. Dianon Sys., Inc., No. CV055000757S, 2007 WL 2938615 (Conn. Super. Ct. Sept. 24, 2007) (noting issue among Connecticut courts whether Garcetti applies to private sector whistleblowers).
352. The Court reasoned that employees speaking or writing pursuant to their job duties are unprotected by the First Amendment because they are communicating as employees, not as citizens. Garcetti, 547 U. S. at 422.
353. Id. at 425.
354. The U. S. Supreme Court relied on a variation of this argument in Garcetti v. Ceballos, 547 U. S. 410, 423 (2008).
355. See also Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 FORDHAM L. REV. 33 (2008).
356. See supra note 266.
357. See, e.g., Fraser v. Fiduciary Trust Co. Int'l., 417 F. Supp. 2d 310 (S. D. N. Y. 2006);
358. Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365 (N. D. Ga. 2004).
359. Title VII offers its "opposition" clause as an example. 42 U. S. C. § 2000e-3 (a) (2006). The opposition clause protects employees engaged in any act "opposing" a violation of Title VII.
360. See generally B. LINDEMANN & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 655-63 (3rd ed. 1996). However, as broad as the opposition clause might seem-and it is certainly broader than most citizen employee laws-it is still not broad enough. It might not protect employee conduct merely complying with the law to an employer's subsequent consternation. Nor does it protect citizen employees whose conduct consists of performing other types of public duty, such as by serving as witnesses.
361. Restatement (Third) of Employment Law, supra note 171, § 4.02.
362. The watershed mixed motive case in employment law is Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). See also 42 U. S. C. §§ 2000e-2 (m), 2000e-5 (g) (B) (2006) (codifying a mixed motive rule for Title VII cases).
363. One example is the False Claims Act. 31 U. S. C. §§ 3729-3733 (2006). For a discussion of existing and proposed rewards for whistleblowers
364. see Geoffrey C. Rapp, Beyond Protection: Invigorating Incentives for Sarbanes-Oxley Corporate and Securities Fraud Whistleblowers, 87 B. U. L. REV. 91 (2007);
365. Marsha Ferziger & Daniel G. Currell, Snitching for Dollars: The Economics and Public Policy of Federal Civil Bounty Programs, 1999 U. ILL. L. REV. 1141 (1999).
366. See, e.g., Wash. Suburban Sanitary Comm'n, 11 F.3d 352 (4th Cir. 2001) (plaintiff could reasonably believe that the affirmative action plan he opposed was unlawful). Affirmative action favoring the selection of minorities could be illegal "reverse discrimination. " On the other hand, a law against "discrimination" might actually require an employer to engage in affirmative action, depending on the circumstances.
367. See Johnson v. Transp. Agency, 480 U. S. 616 (1987) (upholding validity of employer's preferences for hiring females for certain positions, as part of voluntary affirmative action plan).
368. One seldom needs to go far to find an example of a trivial statute or regulation. A famous and regularly invoked example is a set of regulations once adopted by the Occupational Health & Safety Act (OSHA) that prohibited the use of ice in drinking water and that required that all toilets must be "open front."
369. See MARK ROTHSTEIN & LANCE LIEBMANN, EMPLOYMENT LAW 712-13 (2007).
370. Brockmeyer v. Dun & Bradstreet, 335 N. W.2d 834, 840 (Wis. 1983);
371. Gantt v. Sentry Ins., 824 P.2d 680 (Cal. 1992).
372. Cf. Geary v. Telular Corp., 793 N. E.2d 128, 134 (2003), lamenting that "[t]here is no precise definition of what constitutes a clearly mandated public policy."
373. 180 F. Supp. 2d 208 (D. Me. 2002).
374. Id. at 212.
375. ME. REV. STAT. ANN. tit 26, § 833 (2007 & Supp. 2008).
376. The employees were nevertheless able to establish a prima facie case under another provision of Maine law. Smith, 180 F. Supp. at 217-18.
377. Sabine Pilot Serv., Inc. v. Hauck, 687 S. W.2d 733 (Tex. 1985);
378. Hawthorne v. Star Enter., Inc., No. 07-02-0458-CV, 2003 WL 21705370 (Tex. App. July 23, 2003).
379. See Hubbell, SUPRA note 46, at 106-97.
380. Id.
381. See, e.g., ARIZ. REV. STAT. ANN. § 23-1501.3 (c) (i) (Supp. 2008).
382. CAL. LAB. CODE § 1102.5 (West 2003 & Supp. 2009). Judicial pronouncements, provided they have a "singularly public purpose." Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025 (Ariz. 1985).
383. Lake River Corp. v. Carborundum Co., 769 F.2d 1284, 1289 (7th Cir. 1985) (discussing how efficient breaches are socially beneficial since both parties are either in the same or better position than they would have been if the contract had been performed);
384. TruGreen Co., L. L. C. v. Mower Bros., Inc., 199 P.3d 929 (Utah 2008).
385. See also Fred McChesney, Tortious Interference with Contract Versus "Efficient" Breach: Theory and Empirical Evidence, 28 J. LEGAL STUD. 131 (1999), which discusses the conflict between the efficient breach theory and the "tort" of third-party interference.
386. The current Texas code, for example, defines libel but not slander. TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (Vernon 2005 & Supp. 2008).
387. RESTATEMENT (THIRD) OF EMPLOYMENT LAW, supra note 171, § 4.02.
388. Id.§ 4.02 (a), (b), (e).
389. Id. § 4.02 (a), (e).
390. Id.
391. Id. § 4.02 (f).
392. But see id. § 4.03, stating that public policy "includes" constitutions, statutes, decisional law, administrative regulations, and principles of professional conduct.
393. Payne v. Rozendaal, 520 A.2d 586, 588 (Vt. 1986). For similar definitions of public policy
394. see Palmateer v. Int'l Harvester Co., 421 N. E.2d 876 (Ill. 1981);
395. Nees v. Hocks, 536 P.2d 512 (Or. 1975);
396. Banaitis v. Mitsubishi Bank, Ltd., 879 P.2d 1288 (Or. Ct. App. 1994).
397. 913 P.2d 377 (Wash. 1996).
398. Id. at 378-79.
399. Id. at 382-84.
400. Id.
401. Compare annotations under TEX, GOV'T CODE ANN. § 554.002 (Vernon 2004 & Supp. 2009)
402. one of many narrow Texas citizen employee laws, with annotations under laws of more general coverage, such as N. J. STAT. ANN. § 34:19-3 (West 2000 & Supp. 2008)
403. ARIZ. REV. STAT. § 23-1501 (Supp. 2008).