In More Accommodation, Less Technicality for Workplace Whistleblowers, Professor Craig Senn performs an excellent analysis of the vast array of federal whistleblower and retaliation laws. He engages in a much-needed deep dive into the distinctions between these laws and proposes a new standard for worker protections. Professor Senn appropriately critiques the coverage employees receive when blowing the whistle under these laws and proposes a well-considered alternative and unified approach to protect workers.
The law in this field is confusing, at best. The various federal whistleblower statutes are articulated differently and have been applied in many ways. Without sufficient protection for those who appropriately complain, the statutes can lose all meaning and impact. Indeed, workers will be chilled from blowing the whistle if their careers and employment hang in the balance. Over the years, many courts have applied rigid standards for gaining protection, often holding employees to overly high standards and expectations in their knowledge and understanding of the law and statutes.
Professor Senn’s groundbreaking paper encapsulates the problem and expertly proposes a novel solution. He outlines six different federal laws and discusses the retaliation component of each. These include the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Sarbanes-Oxley Act. In outlining the whistleblower and/or retaliation provisions of each statute, Professor Senn further explains the various “technical provisions” that exist and explores the “precedent in which federal courts apply a hypertechnical approach . . . ultimately leading to dismissal of retaliation claims.” (P. 1909.)
This exploration and comparison of the various federal statutes is extraordinarily helpful. It provides the decisive overview of the many different laws in this area, and this detail and analysis were badly needed in this muddled field. Professor Senn’s further examination of the numerous federal court approaches to these statutes is equally important and helps summarize the varied ways that courts have declined to extend protections under the many workplace laws. This summary of both the law and federal court analysis will thus appropriately provide an important resource for those researching in this area.
Beyond this survey of the statutes and court-interpretations, however, Professor Senn engages in an expert analysis on how the law can be reformed in this area. In particular, Professor Senn argues that the law is far too complex in this field for the average worker to understand. He suggests moving away from this technical type of consideration to a more reasoned approach to whistleblower claims, emphasizing that the analysis will inherently be case specific and that the facts of each situation will have to be looked at individually.
In this way, Professor Senn argues for what he coins a Layperson Accommodation Approach for workers considering bringing a claim in this area. Pursuant to this approach, he recommends eliminating any hyper-technicalities associated with these coverage issues to better consider whether the legal provisions should protect workers in their specific situation. In this way, Professor Senn notes that his approach would provide a number of different parameters for a court to consider. This would include a recommendation that a court weigh, “(1) the amount of experience and legal sophistication of a reasonable layperson, (2) the formality or density of the sources evidencing the legal technicalities, (3) the complexity of the legal technicality itself, and (4) an understanding and availability of relevant facts needed to apply that technicality.” (Pp. 1909-10.)
In advocating for this more relaxed standard and broad-based approach to be applied by the courts to whistleblowers, Professor Senn notes that this philosophy has previously been applied by the legislature. He specifically highlights the Older Workers Benefit Protection Act of 1990 which allows for this “layperson-protective” standard, and further notes that in other contexts the courts have looked to the “totality of circumstances” analysis in considering the waiver of workplace claims. Just as Congress and the courts have been cautious in allowing workers to waive their own protections, a sensible workplace standard would protect those employees that blow the whistle on improper workplace conduct.
Workplace whistleblowing and retaliation are notoriously under-researched and misunderstood areas of the law. Professor Senn’s piece provides important research for those considering writing or litigating in this area. More importantly, however, this Article does a beautiful job of advocating for the next step and explaining why the law often requires too much of the average layperson. Professor Senn’s approach is straightforward and easy to apply and provides just the right mixture of considerations for both advocates and the courts. There is little doubt that this article will quickly become the seminal piece in this field, and that it will be well-relied upon by both academics and litigants alike.
As Professor Senn correctly notes, there is a widely held view that the provisions discussed throughout the paper must “encourage workplace whistleblowing and ferret out employers with retaliatory intent.” (P. 1910.) His well-balanced approach and provided guideposts to clarifying this area will serve as a template for others to follow. The wealth of research provided in this Article make it a must-read for all employment law scholars. The new approach identified by Professor Senn make it one of the most important pieces ever written on whistleblowing clams. If followed, the sensible, well-balanced approach identified by Professor Senn will undoubtedly help “ferret” out the type of misconduct with which we should all be concerned.
