Professor Martin Malin of IIT-Chicago Kent College of law summarized current law as it relates to whistleblowing. In this regard, he first discussed the measure of protection for whistleblowing under the common law, that is, the law as laid down by judges in cases that do not arise under specific statutes passed by a legislature. Malin next discussed collective bargaining and statutory protections for whistleblowers. He concluded with a few suggestions of his own for a legal standard to protect whistleblowers.

Describing the common law as it relates to whistleblowing, Malin noted that for the most part the doctrine of "employment at will" governs employer-employee relations in the private sector. This doctrine looks upon employer and employee as equal partners to an employment contract. Just as employees may resign whenever it pleases them, so also may employers dismiss their employees whenever they desire. Malin cited examples from the voluminous body of case law in which judges affirmed the doctrine of employment at will. In this regard, he noted that while over the years courts have upheld suits by discharged employees in isolated cases, for example, when the discharge was for refusal to give perjured testimony, for serving on a jury, or for declining to participate in an illegal price fixing scheme, by and large they have not acknowledged even these narrow limitations.

Malin did discuss, however, several potentially significant cases which may well open the door to substantially enhanced common law protections for whistleblowers. In one of these cases, Toussaint v. Blue Cross-Blue Shield of Michigan, the Michigan Supreme Court held that an employment contract may contain an enforceable promise to discharge only for just cause. This case marks a departure from previous law because the doctrine of employment at will has been considered so absolute as even to preclude enforcement of such agreements. In another case, Palmateer v. International Harvester, the Illinois Supreme Court overturned as unjust the discharge of an employee for reporting criminal activity of a fellow employee. Rather than treating this case as another narrow exception to the doctrine of employment at will, the Illinois Supreme Court appeared to base its decision on the ground that dismissals of employees in the private sector which contravene the "public policy" of the State should be deemed unjust. The court then defined "public policy" in a very broad way as " . . what is right and just and affects the citizens of the State collectively." Malin observed that reliance upon such abroad conception of public policy in employee discharge cases would effectively mark the end of the doctrine of employment at will. He noted, however, that it remains an open question to what extent courts will follow the lead of the Illinois Supreme Court in this regard.

As for protection of whistle blowers under collective bargaining agreements. Malin first outlined the relevant basic federal statutory framework. "Section Seven of the National Labor Relations Act guarantees the right to organize and bargain collectively. However, several types of workers, including supervisors and managers are excluded from the Act's protection . ...Most collective bargaining agreements require that the employers have just cause to dismiss covered employees." Furthermore, such agreements provide for grievance procedures indisciplinary and discharge cases which typically contain several steps, the final one of which is a hearing presided over by an impartial arbitrator.

Malin said that while arbitrators have generally reinstated employees discharged for statements made about their employers in connection with union activities, by and large, they have upheld discharges of whistleblowers. In this regard, he noted that many arbitrators take the "hard line" position that as an employee one may not "bite the hand that feeds you and insist on staying for future banquets." Main stated, however, that while those arbitrators favoring the above approach view whistle-blowing as per se disloyalty, others will consider such factors as an employee's motives and whether he or she first tried to work through normal internal channels.

In regard to statutory protection for whistleblowers, Malin said that many federal statutes contain anti-retaliatory provisions which specify penalties for employers who discharge or otherwise penalize employees far notifying authorities of employer violations under the respective statutes. Among such pieces of legislation he cited the National Labor Relations Act, the Fair Labor Standards Act, The Age Discrimination in Employment Act. Title VII of the 1964 Civil Rights Act, the Occupational Health and Safety Act, and the Federal Mine Safety Act. Malin said, however, that in some instances courts have interpreted these anti-retaliation provisions narrowly. For example, in one case a court held that the Federal Mine Safety Act does not protect a miner from discharge for notifying the union safety coordinator. The court said that under the Act, only reports to the Secretary of the Interior or his authorized representative are entitled to protection.

Malin concluded his presentation with some remarks about the conditions that a legal standard for protecting whistleblowers should satisfy. He said that its goal should be "making whistleblowing unnecessary. It should encourage employers to establish credible internal channels for the voicing of employee concerns about improper behavior . . . Where such internal channels exist, an employee's failure to use them should be grounds for discipline."

Tom Donaldson, Professor of Philosophy at Loyola University of Chicago, analyzed the moral basis of employee rights, in particular with respect to whistleblowing. Donaldson posed the primary questions in this regard as follows:

"(How might) defenders of employee rights . . . attempt to prove that such rights exist. Critics will certainly deny that the existence of such rights is self-evident. How can they be persuaded? What is the logic underlying the concept of an employee right? Who is to say which rights should appear on an authoritative list of employee rights? These are challenges defenders of such rights can ill afford to ignore. Without a theoretical justification, it appears that rights are being postulated ex nihilo."

In determining the theoretical foundations of employee rights, Donaldson first noted the existence of a fundamental moral right to equal freedom which he maintained is presupposed by the very concept of moral evaluation. In this regard he said:

"One condition necessary for genuine moral behaviour is that people possess the freedom to act: for if they were restrained from acting, or if their behavior were under the control of external influences, then we could not evaluate them from a moral point of view. Freedom, thus, seems to be the indispensable and necessary condition for any moral behavior whatsoever. Thus, one may conclude that any moral agent, has a right to freedom. "

The notion of a right to freedom, however, Donaldson maintained, strongly suggests that of another right, namely the right to behave responsibly:

" . . . if one has a right to what is a prerequisite for behaving responsibly and irresponsibly, then of course one at least has a right to what is a prerequisite for behaving responsibly. To put it another way, if one has an equal right to the conditions for moral behavior in general, including right and at least some wrong actions, then one necessarily has an equal right to the conditions for performing right actions."

But the right to behave responsibly, Donaldson argued, in turn implies a number of strong employee rights:

" . . . if all people have a right to the conditions for responsible behavior, then it can be argued that corporations and other employers are obligated to establish conditions which are compatible with responsible behavior. And it can be argued that if corporations fire employees who undertake morally responsible acts such as (1) refusing to obey immoral orders, or (2) complaining about dangerous products, they have discouraged responsible behavior and, thus, have infringed upon employee rights."

In summary then, Donaldson conceived of employee rights in regard to whistleblowing as implicit in the idea of a broader right to behave responsibly. This right in turn he regarded as derivable from an even broader and more fundamental right, the right to freedom. In the discussion that followed Donaldson's paper, a number of people asked for further statements about how the right to behave responsibly applies in various specific situations. For example, it was asked whether it requires that anyone who hires someone to work for him or her, even on a very short term basis, has a correlative duty to dis-charge the employed person only for just cause? Donaldson acknowl-edged he has not yet developed his approach to provide detailed answers to this kind of question.