Are South Dakota employees afraid to whistle their tune?: an argument for expanded whistleblower protections in South Dakota.

AuthorWendt, Ashlee

This article provides an in-depth analysis of South Dakota's state and common law protections for whistleblower employees. By incorporating a comparison of South Dakota and Minnesota whistleblower laws, as well as a brief overview of the historical development of federal protections to their current status, this article demonstrates South Dakota's need to mature in its protections for whistleblowers. Without whistleblower protections, South Dakota places its workforce at risk of retaliation and its public at risk of fraud.

  1. INTRODUCTION

    A whistleblower can be anyone; it could be your friend, your neighbor, or even you. (1) The term "whistleblower" describes employees who report an employer's illegal conduct or who refuse to commit illegal acts. (2) A whistleblower may work for a private organization or the government; he or she may work in a school, a church, or even a hospital. (3) Whistleblowers may report a wide variety of illegal conduct. (4) In the past few years, individuals have "blown the whistle" on a variety of issues including, a university's publication of inaccurate job placement statistics; the purposeful overpricing of medication, including Medicaid; and widespread overseas tax evasion. (5) Although some cases become high profile, many whistleblowers go unnoticed by the general public. (6)

    Public opinion of whistleblowers varies greatly. (7) Some view whistleblowers as brave individuals who are willing to risk their livelihoods for the public good. (8) In contrast, many others view whistleblowers as tattletales who are only out to satisfy their own "political, ethical, moral, or personal agendas" while embarrassing their co-workers and employers. (9) Regardless of a whistleblower's motives, each time an employee chooses to report his or her employer's illegal behavior, the employee puts him or herself at risk as complex legal and ethical issues arise. (10) From a legal perspective, the choice of whether or not to report an employer's illegal conduct may be perceived as being voluntary; ethically and morally, however, employees may feel strongly compelled and even obligated to report illegal actions. (11) In fact, for many whistleblowers, "[i]t is difficult emotionally, personally, intellectually and professionally to come forward" and report his or her employer, co-workers, and friends. (12)

    When deciding whether to blow the whistle, employees must consider several factors. (13) These factors generally include the employee's position in the workplace, the position of the person committing or encouraging the illegal act, the significance of the illegal act, and the culture of the employer. (14) Many whistleblowers also worry they may face retaliation, including discipline, termination, and harassment, even when reporting truthful illegalities in good faith. (15) In addition to retaliation in their present jobs, whistleblowers must consider the permanent damage that reporting may do to their careers. (16) They may be viewed as "troublemakers" by others in their industry and have trouble finding future employment because of the stigma. (17) While many whistleblowers are generally aware of these risks, they may not fully comprehend how large a risk they are taking. (18)

    After blowing the whistle, whistleblowers often become isolated. (19) They may become alienated by co-workers and disliked by supervisors. (20) In addition to potentially losing wages due to termination, whistleblowers may incur significant legal debt fighting retaliation from their employers. (21) Due to the debt incurred, whistleblowers may lose their homes and their personal relationships may suffer. (22) Many whistleblowers also face mental illness and thoughts of suicide. (23)

    In 2012, an NBC affiliate in California released a story regarding individuals who had blown the whistle on issues including sexual assault, racism, and retaliation within the California National Guard. (24) The news station spoke with nearly two dozen California National Guard members, including Master Sergeant Jessica Brown. (25) Brown reported issues regarding the California National Guard's treatment of sexual harassment and assault. (26) She stated that while away for training in 2007, she was sexually assaulted by a fellow member of the California National Guard. (27) She immediately reported the sexual assault; however, Brown claims the issue was not resolved and Brown's chain of command performed no formal investigation. (28) In fact, after her initial report, the sexual harassment continued for years. (29)

    Another member of the California National Guard, Lieutenant Colonel David Emery, although not in Brown's chain of command, became frustrated by the lack of resolution and sent several memoranda regarding the issue, including a memorandum to the California National Guard's Sexual Assault Response Coordinator. (30) Emery said he, too, was retaliated against due to his involvement in the reporting and questioning of failures in leadership. (31) Unfortunately, the situation did not improve for Brown; in fact, it took a turn for the worse after the news station reported the whistleblowing. (32) Brown attempted suicide in May, 2013. (33) In her suicide note, she wrote "my pain is ending" and expressed belief that her leadership wanted her to die. (34) The effects of whistleblowing can be devastating to whistleblowers and their families. (35)

    Adequate whistleblower protections may assist in the prevention of tragedy. (36) In a 2013 survey, South Dakota's state whistleblower laws ranked last in comparison to the fifty states and the District of Columbia. (37) Out of a possible score of one hundred, South Dakota received a score of twenty-two. (38) Minnesota, in contrast, ranked seventeenth, receiving a score of sixty-one, almost three times that of South Dakota. (39) While South Dakota's state protections for whistleblowers remain subpar, Minnesota continues to increase its state protections. (40) Over the last twenty years, whistleblowing has become common practice. (41) Accordingly, federal whistleblower protections have continued to evolve, as protections in most states have. (42) South Dakota is falling behind and is not protecting whistleblower employees adequately when compared to the protections in place by other states. (43) If South Dakota does not clarify its whistleblower protections, the unclear outcomes faced by whistleblowers will continue to deter illegalities from being reported (44) Accordingly, it is essential that South Dakota promptly strengthen its protections (45) Recent statistics show twenty-two percent of whistleblowers experience retaliation after reporting misconduct. (46) Similarly, and importantly, thirteen percent of employees have "perceived pressure to compromise standards in order to do their jobs," and as high as forty-two percent of companies have "weak ethics cultures." (47)

    This comment begins by providing insight into the origin of whistleblower terminology. (48) It then provides a brief summary of the evolution of whistleblowing and the historical development of federal whistleblowing protections. (49) Building on that foundation, this comment offers an in-depth analysis of South Dakota and Minnesota whistleblower protections. (50) The comment goes on to compare the profoundly minimal state law protections currently in place in South Dakota to the expanding state law protections in Minnesota. (51) Finally, this comment recommends changes to South Dakota law that are essential to protect its workforce adequately. (52)

  2. BACKGROUND

    The use of the term "whistleblower" originates from police officers historically using their whistles to notify other officers and the public of a crime being committed. (53) The New York Times first used the term in a 1970 article, meaning "one who 'blows the whistle' on a person or activity." (54) The article discussed a New York City Councilman who blew the whistle on scheming City Council members, including the Majority Leader. (55) New Scientist magazine again used the term in 1983. (56)

    Today, whistleblowers tend to fall into one of the three following categories: passive whistleblowers, active whistleblowers, or embryonic whistleblowers. (57) Passive whistleblowers refuse to perform illegal tasks, but do not report the request to perform such tasks to authorities outside of the employer. (58) Active whistleblowers actively voice their concerns with their employers' behavior. (59) On the other hand, embryonic whistleblowers consider refusing to perform an illegal task or making a complaint, but they are terminated before they are able to do so. (60)

    Traditionally, the employment-at-will doctrine governed United States' businesses and still does today. (61) Under the employment-at-will doctrine, "an employer-employee relationship in absence of a contract and of indefinite duration is terminable at the will of either party." (62) Most jurisdictions use this doctrine when examining issues related to employment law and allow for an employer to terminate its employees "at any time and for any reason." (63) However, federal, state, common, and statutory laws have created several exceptions to the employment-at-will doctrine; many of these exceptions are in the name of public interest. (64)

    The reporting requirements of federal whistleblower provisions often vary drastically from state whistleblower statutes. (65) Most federal laws allow employees to choose whether to report the illegalities internally or externally. (66) State laws, however, almost always limit employees' options when choosing to report violations. (67) For clarity, this comment discusses the background of both federal and state whistleblower protections separately. (68)

    1. BACKGROUND AND EVOLUTION OF FEDERAL WHISTLEBLOWER PROTECTIONS

      Whistleblower protections originate from the Civil Service Reform Act of 1978 (CSRA). (69) The CSRA sought to protect federal employees who disclosed certain types of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT