In Nancy M. Modesitt’s recent research article “The Garcetti Virus,” she explains how a doctrine known as the job duties exclusion has come to erode protections once afforded to whistleblowers. She explains that this doctrine allows the discharge of an individual who discovers illegal activities while performing his or her job and then reports those issues to a supervisor. Although one might think the current whistleblower laws would protect such disclosures, Modesitt explains that is no longer the case.
Modesitt details how the the Federal Circuit created the job duties exclusion more than a decade ago in the case of Wills v. Department of Agriculture (1998). The case involved an employee in the Department of Agriculture who reported to his supervisor that a number of farms he had investigated were not complying with a government soil-protection program. The supervisor disagreed with the employee’s findings and overruled him on 6 of the 7 cases. The employee complained about the decision and later claimed that he was retaliated against for his comments. When the case was heard by the Federal Circuit, the court decided that the employees comments did not put him “at personal risk for the benefit of the public good.” As such, the court ruled that his comments could not “constitute a protected disclosure under the [Whistleblowers Protection Act (WPA)].” In later cases involving disclosures made by federal employees, the courts further limited the protection afforded to them for their whistleblower activities.
As a result of these limitations, employees involved in investigation work who then report wrongdoing within their agency are currently only protected in two situations. Those situations are “(1) where the disclosure is made outside of normal reporting channels and (2) where the disclosure is not one that is normally a part of the job.” These protections are very limited in scope and encourage employees to report wrongdoing to outside sources instead of those within their agency. By limiting the protection of employees to cases where a issue was reported to an outside source, employees are encouraged to forgo reporting instances of wrongdoing to their supervisors and, instead, speak to outside sources. This can create a feeling of distrust between employers and employees that is not conducive to a healthy work environment.
Although the job duties exclusion was once only used in cases involving federal employees, Modesitt argues that a drastic change has occurred. An increasing number of employers have, with some success, argued that the exclusion should apply to employees in both the public and private sectors. To prevent the application of this exclusion to non-federal employees, Modesitt ends her article by offering two ways in which the issue can be handled. She states that Congress should amend the WPA to protect public and private sector employees and that state level legislatures should amend the whistleblower protection statutes in their own states. By employing these two solutions, she believes that whistleblowers will be able to, once again engage, in the “legitimate reporting of unlawful activity” without limitations that too severely constrict their speech.
This blog post was written by intern Russell Haver.
Other blog entries addressing Garcetti include:
Supreme Court ducks conflict on Garcetti
Ninth Circuit protects social worker’s court testimony
ARB protects duty speech, but not investigating duties
DC federal court upholds jury verdict for fraud whistleblower