Tuesday, February 26, 2008

Whistleblower issues; do employers fear that bloggers can hire on as spies?


First, on paper, there are supposed to be a lot of protections to protect whistleblowers in federal law. OSHA at the Department of Labor has a link that enumerates numerous laws and protections, here.

However Brian Ross has maintained a blotter on the case of federal air marshall Spencer Pickard at ABC News. The original story about his suspension with pay on June 30, 2006 is by Rhonda Schwartz and Avni Patel and appears now on Brian Ross 's blog here. The reactions from the comments that follow, all the way to a few days ago in Feb. 2008, are mixed, but many people speak of a culture in federal agencies of retaliation against whistleblowers, despite legal protections. Dismissal and loss of retirement can happen. In this case, the complaints sound legitimate: it was hard for federal air marshalls to keep their cover and keep their public profile low enough.

Then on July 16, 2007 WJLA in Washington reported that the Capitol tunnel workers had settled a whistleblower retaliation complaint with the Architect of the Capitol, here.

Then on September 12, WJLA reported on whistleblowering against payday loan practices at Check 'N Go, link here.

Major news organizations have sometimes planted reporters as "stings" to expose companies, such as in the 1990s in a sting against Food Lion. This case started in 1992 when undercover ABC journalists obtained "grunt" jobs at a Food Lion and secretly taped food handling practices for a "Prime Time Live" broadcast. Food Lion won a large judgment against ABC for, among other things, "breach of loyalty," although the award was eventually greatly reduced by an appeals court in Richmond. The First Amendment Center has a commentary on this case here. Admittedly, a case like this raises deeper issues: deliberately taking a low-level job to spy on an employer.

But it is a case like this that may seem relevant today in the controversy over employers' looking at job applicants' blogs and social networking profiles. They say they are looking for untrustworthiness (underage drinking, for example, or bragging about drug use). But today, they may feel especially wary when "overqualified" people (especially pseudo-retirees) apply for jobs. Of course, if they aren't doing anything wrong, they have nothing to "fear."

Employers do have a right to protect confidentiality and trade secrets. Employers certainly can ban cameras unauthorized photography on their premises (although cell phones can present an issue). Microsoft fired an employee a few years ago for photographing a server on the premises and posting the photograph on his own website; look here.

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