Tuesday, March 3, 2020

Eisenstadt, Pacella and Boles on Whistleblowing

Congratulations to Leora Eisenstadt (Temple University - Fox School of Business), Jennifer Pacella (Indiana University - Kelley School of Business) and Jeffrey Boles (Temple University - Fox School of Business) on their extremely timely and important article, Whistleblowing in the Compliance Era, which is forthcoming in the Georgia Law Review.  The link to the paper is available here, and the Abstract is below:

International events over the last several months have propelled the importance of whistleblowers to the forefront. Yet, for years, such individuals have been the victims of retaliation. Against the backdrop of a current society heavily defined by compliance-focused initiatives, this Article highlights a significant gap in legal protections for would-be whistleblowers. While compliance initiatives demonstrate how active self-regulation is increasingly becoming a staple of organizational governance, we pinpoint in this Article the problems that arise when such initiatives extend beyond applicable legal thresholds for retaliation protection. This extension exposes vulnerable employees and potential whistleblowers to adverse employment actions without legal recourse even if they comply with their employers’ internal policies and compliance programs. We examine this gap in legal protections in the context of compliance initiatives within the following three domains: equal employment opportunity and sexual harassment; securities fraud; and anti-corruption. We then compare these initiatives with the legal and regulatory compliance postures under Title VII of the Civil Rights Act of 1964, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Foreign Corrupt Practices Act, respectively, to illustrate the ways in which most compliance initiatives fall short of mirroring the retaliation protections applicable to these statutes. To remedy this gap in protections, we propose complementary solutions under contract and tort law frameworks, coupled with soft law initiatives.

Definitely take a look at this important paper, particularly if you are researching or teaching in this area.

- Joe Seiner


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