Protecting the Whistleblower from Retaliatory Discharge
This approach to the problem of whistleblowing, however, is misguided; the appropriate balance is between the employee’s interest in acting in accordance with his individual conscience and his duty of loyalty to his employer. This Article argues that although the law should protect individual acts of whistleblowing once they have occurred, it should not affirmatively encourage whistleblowing. Part I discusses the protection currently available to whistleblowers under the common law, collective bargaining agreements, and the antiretaliation provisions of several important statutes. Part II proposes a general standard of whistleblower protection that is designed to protect individual whistleblowers in appropriate circumstances, but which will not actively promote such conduct. Part III develops remedies for retaliatory discharge which, like the standard advocated in part II, will protect past whistleblowers without encouraging future whistleblowing. The Article concludes that, unless there is a violation of a collective bargaining agreement, a discharged whistleblower should be given a remedy that includes future damages, rather than the traditional labor law remedy of reinstatement.