When employers or their managers act against the public interest, citizen employees are often the first casualties. By "citizen employees," I mean employees who respond to a sense of public duty even at some cost to their work, professional relations, or their employer's business.1 Citizen employees are defined by their conduct. They question or resist instructions to commit or assist Page 238 wrongful activity. When they discover wrongful conduct of fellow employees or managers, they blow the whistle to other responsible managers or outside law enforcement authorities. They serve the public as jurors, witnesses, military reservists, and volunteer emergency responders, despite the competing demands of their employment.
Citizen employees can provoke a wide range of responses by employers and other employees and managers. An employer who admires service to the public in some contexts might discourage such activity in other contexts. Fellow employees and managers may find a citizen employee's conduct commendable, but they could also find his conduct annoying or even threatening. If a citizen employee's conduct threatens business or personal interests, affected managers may brand him incompetent, disloyal, insubordinate, or antisocial. More importantly, the employer might retaliate by discharging a citizen employee or by other adverse employment action to punish the citizen employee and set an example for others. In this regard, citizen employees resemble other groups of employees defined in the law by potentially provocative conduct, including employees who exercise personal rights under employment statutes or who engage in "concerted action" to strengthen their bargaining position against an employer.2 The defining conduct for each of these protected groups serves a legislative goal, but the conduct often conflicts with the interests of employers or individual managers, which is why the conduct must be protected and employer interference must be prevented if the conduct is to be promoted. What sets citizen employees apart from other "protected conduct" groups is the object of their conduct, which is to further a public interest rather than personal or collective employee interests.
In the media and in the public imagination, citizen employees who risk their jobs to protect the public interest or uphold the law are the heroes of the post-Enron world.3 At first glance, the legal system shares this view enthusiastically, if enthusiasm is measured by the number of statutes4 and court decisions encouraging citizen Page 239 employee conduct. Over the last seven years, Congress has enacted the Sarbanes-Oxley Act5 (SOX), which included new whistleblower provisions in the American Recovery and Reinvestment Act of 2009,6 and strengthened other laws7 for the protection of employees who report violations of federal law or mismanagement of federal contracts. During the same period, the Supreme Court addressed six cases important to citizen employees.8 In three of these cases, a majority of the Court proclaimed the urgency of protecting employees who uphold the public interest, particularly in the enforcement of laws against discrimination. In Burlington Northern and Santa Fe Ry. Co. v. Page 240 White,9 Justice Breyer observed that Title VII's prohibition against discrimination in employment "depends for its enforcement upon the cooperation of employees."10 In Jackson v. Birmingham Board. of Education,11 Justice O'Connor maintained that if Title IX's12prohibition against discrimination in education did not implicitly prohibit retaliation against employee whistleblowers, the law's enforcement scheme would "unravel" because "individuals who witness discrimination would likely not report it, . . . and the underlying discrimination would go unremedied."13 In Crawford v. Metropolitan Government of Nashville and Davidson County,14Justice Souter noted that "prudent employees would have a good reason to keep quiet"15 about observed violations of Title VII were it not for that law's prohibition against retaliation.
But episodic expressions of support for citizen employees belie a persistent ambivalence. The latest developments mark incremental gains for citizen employees, not a revolution. The origins of job protection for citizen employees are rooted in an era long before the Enron scandal. In fact, examples of protective employment laws for citizen employees date back to the post-Civil War era.16 Nevertheless, more than a century of incremental gains has left citizen employees far short of what other protected employee groups have gained in much shorter stretches of time. An employer's right to restrict employee behavior as a condition of employment and to discharge employees at will, even for "good behavior," remains the default rule.17 Narrow exceptions declared by courts and legislatures for citizen employees cut only a limited swathe against the employer's freedom to interfere or retaliate. Moreover, current anti-retaliation laws are of debatable effectiveness even within the narrow range of their potential effect. For example, recent scholarship by Professor Richard Moberly shows that employee claimants rarely succeed in proceedings Page 241 under SOX, due at least in part to restrictive coverage and procedural or administrative hurdles.18
Narrow coverage is typical of anti-retaliation laws for citizen employees. Many anti-retaliation laws grant protection only for certain conduct in support of a particular law, policy, or regulatory scheme. The implied anti-retaliation rule identified in Jackson, for example, relates only to an employee's opposition to a violation of Title IX's prescription against discrimination in education.19Express or implied anti-retaliation rules of this sort offer no protection for employee action in support of laws other than the ones to which they are attached.20 Anti-retaliation laws for a broader range of laws, policies, or interests are usually limited to employees of a particular industry, occupation, or unit of government,21 and nearly all anti-retaliation laws limit protection to particular types of employee conduct. Some anti-retaliation laws protect an employee only if he engages in whistleblowing by reporting unlawful activity to an appropriate authority.22 If he voices his concerns internally to his employer and is discharged before reporting to an appropriate outside authority, he might be unprotected.23 Under other anti-retaliation laws, an employee who complains to outside authorities might lack protection because he Page 242 failed to complain to his supervisors first.24 Encouraging employees to voice concerns internally first might seem like a good idea-it might actually prevent wrongdoing from occurring. But in some states an employee does not qualify as a protected whistleblower if he objects to "proposed" wrongdoing. He must blow the whistle only after the wrong is done.25 Under still another group of anti-retaliation laws, no variation of whistleblowing is protected. To gain the protection of the law, an employee must refuse to obey an order to assist or participate in illegal activity.26Legal protection can be similarly restrictive for other types of citizen employees, such as employees who take time from work to testify in legal proceedings. In many jurisdictions, the question of whether a witness is protected for missing work time or for testifying against the employer's interest depends on what law is being enforced in that proceeding.27 A few states protect emergency responders who serve the community in case of disaster;28 the vast majority of states do not.
Citizen employee laws are also mixed with respect to the scope of employer conduct prohibited. Laws promoting and protecting Page 243 conduct can take a range of approaches toward the employer's response to the conduct. A typical approach, especially in the case of judicially declared common law causes of action, is to make the employer liable for discharging an employee in retaliation for his protected conduct.29 A more expansive approach provides remedies for lesser employment actions, such as harassment.30 The most expansive approach is to prohibit employer acts of interference.31 Under this approach, an employer violates the law by threatening employees or otherwise impeding their conduct as citizens.32 An employer might be subject to liability or sanctions under this approach even if its threat was so effective that no employee acted as a citizen, and it was unnecessary for the employer to retaliate. Prohibiting employer interference is the most effective way to promote employee conduct, but very few citizen employee laws take this approach.
Thus, while the number and variety of laws protecting citizen employees seems impressive, these laws form an incomplete, inconsistent, and unreliable patchwork. There is no master anti- retaliation law of the order of Title VII to fill the gaps, either at the federal level or in any but a few states. A citizen employee's protection against retaliation and interference depends as much on the luck of geography, occupation, and the law the employer violated as on the merits of the employee's conduct or the value of his action to the community.
Even after the Supreme Court's most recent interpretations of express or implied whistleblower protections, there is no assurance that courts...