Retaliation and Whistleblowers: Proceedings of the New York University 60th Annual Conference on Labor
Each year, the New York University Annual Conference on Labor calls on outstanding scholars and practitioners in the field to come together to survey and analyze new developments and trends in U.S. labor law and practice. This volume reproduces the texts (updated and reworked by the authors) presented at the 2007 Conference, the 60th in this venerable and highly influential series, at which the theme was “Retaliation and Whistleblowers” .
There could not be a more timely exploration of this complex workplace issue. The United States Supreme Court, in several pending cases and in the recent landmark cases of Burlington Northern v. White and Garcetti v. Ceballos, has turned its full attention to workplace retaliation claims. States and municipalities also continue to struggle in laying out the scope of permissible claims under state constitutional and statutory whistleblower provisions and under the common law of wrongful discharge.
Among the new and significant issues considered in this volume are the following:
- new limits on the scope of the cause of action in the wake of Burlington Northern;
- implied protection of employee activity under ADEA and the FLSA;
- the scope of “protected activity” under § 806 of the Sarbanes-Oxley Act;
- issues of privilege when investigation counsel are used to inform corporate decision-making;
- state whistleblower laws and the expansion or preemption of common law protections under the common law tort of wrongful discharge;
- NLRA protection of collective protests by non-union workers; and
- potential expansion of the formal definition of “jobs” under Garcetti v. Ceballos to foreclose the first amendment avenue.
Besides papers by panelists at the Conference, ten other leading practitioners and academics also provide commentary in this volume.
As always, this important annual publication offers definitive current scholarship in its theme area of labor and employment law. As such, it will be of inestimable value to practitioners, government officials, academics and others interested in developments in U.S. employment and labor relations law and practice.
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Editor’s Preface. Center for Labor and Employment Law at NYU School of Law. Part I. Anti-Retaliation Under Federal and State Discrimination Laws: Implications of Burlington Northern v. White. 1. Responding to and Preventing Retaliation Claims; Z.D. Fasman, P. W. Cane, Jr. 2. When Good Deeds Are Punished: The Legal Landscape of Retaliation and Whistleblowing; W.N. Outten. 3. Burlington Northern v. White in the Lower Courts: A Report on the First Year; E. Schnapper. 4. The Theory behind the Retaliation Claim and Some Doctrinal Implications; D.L. Brake. Part II. Developments under State and Federal Whistleblower Protection Laws. 5. Whistleblower Claims before the NASD and NYSE; E.A. Brecher. 6. State Whistleblower Protection; M.A. Curley. 7. Federal Whistle Blower Laws; E. Taussig. Part III. Developments under the Sarbanes-Oxley Act. 8. Investigating and Defending Whistleblower Claims Under § 806 of Sarbanes-Oxley; W.J. Goldsmith, W. C. Butler, S. M. Goldsmith. 9. Not All Whistles Blow in Tune: Defining the Scope of “Protected Activity” Under § 806 of the Sarbanes-Oxley Act; J.F. Fullerton III. 10. Developments in Whistleblower Cases Under the Sarbanes-Oxley Act; J. Ben- Asher. 11. Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win; R. E. Moberly. 12. Getting the Word Out about Fraud: A Theoretical Analysis of Whistleblowing and Insider Trading; J. Macey. 13. SOX and Whistleblowing; T. Morehead Dworkin. Part IV. Anti-Retaliation Protections under the NLRA and Collective Bargaining Agreements. 14. The Right of Non-Unionized Employees to Be Free from Retaliation for Work-Related Complaints under the National Labor Relations Act; D.P. O’Gorman. 15. Non-Suit Provisions in Collective Bargaining and Severance Agreements, and Releases of Claims; G.P. Clark. Part V. Government Whistleblowers: Implications of Garcetti v. Ceballos. 16. The Solomon Amendment, Expressive Associations, and Public Employment; P. M. Secunda. 17. Beyond Garcetti: The Limits of Protection under the Whistleblower Protection Act of 1989; B.J. Sapin. 18. Free Speech Rights that Work at Work: From the First Amendment to Due Process; C. Estlund. Part VI. Developments Under Wrongful Discharge Law and Comparative Perspectives. 19. Citizen Employees and Anti-Retaliation Law; R. Carlson. 20. Whistleblowers: Rights and Protections; E. Collins, M. Culver. 21. The Troublemaker’s Friend: Retaliation against Third Parties and the Right of Association in the Workplace; A. B. Long.