Monday, February 26, 2018

Eisenstadt and Pacella-Baruch on Whistleblowers

Leora Eisenstadt (Temple Business School) and Jennifer Pacella - Baruch (CUNY Business School) have just posted on SSRN their great new article, Whistleblowers Need Not Apply. The article is available here, and the abstract is below:


Whistleblowers are severely disadvantaged when they apply for jobs. Many whistleblowers experience retaliation twofold—once, at their place of employment after they initially blow the whistle, and, second, on the job market for any subsequent employment. This negative trail follows whistleblowers, labeling them as disloyal, suspicious, and, ultimately, not ideal employees and, thus, unable to find work. Current federal law largely ignores this problem, and protections for job applicants with whistleblowing histories have been severely lacking in some of the most prominent whistleblowing statutes. This Article is the first to examine this glaring lack of legal protections as it pertains specifically to whistleblower job applicants by undergoing a comparative analysis of the retaliation protections available in a number of federal statutes and suggesting statutory reform based on that analysis. Specifically, this Article draws comparisons between civil rights statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, which each provide expansive protections for job applicants, and the most prominent current federal whistleblowing statutes, the Sarbanes-Oxley Act, the Dodd-Frank Act, and the False Claims Act, which lack these protections. "Whistleblowers Need Not Apply" concludes by recommending amendments to these federal whistleblowing statutes, arguing for specific retaliation protections and redress for whistleblowers who are denied a chance to work again because of their past revelations.

This piece is extremely timely given the Supreme Court's recent narrow interpretation of Dodd Frank's whistleblower provision in Digital Realty.  I strongly recommend taking a look if you are researching in this evolving area of the law.

-- Joe Seiner

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