SwazeyJudith P.ScherStephen R., “The Whistleblower as a Deviant Professional: Professional Norms and Responses to Fraud in Clinical Research,” in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Whistleblowing in Biomedical Research; Policies and Procedures for Responding to Reports of Misconduct (Washington, D.C.: American Assn. for the Advancement of Science, 1982), pp. 173–92.
3.
The National Institutes of Health Revitalization Act of 1993, which provides statutory protection for whistleblowers who make allegations of misconduct involving PHS funds, uses the term research misconduct (PHS Act § 493(a)(3)(A)). However, the current PHS misconduct regulation employs the term scientific misconduct (42 C.F.R. § 50.102 (1993)). See infra. The latter term will be applied throughout this article.
4.
42 C.F.R. § 50.102 (1993).
5.
See infra p. 91.
6.
See, for example, BarnettTim, “Overview of State Whistleblower Protection Statutes,”Lab. L.J., 1992 (1992): 440–48; BoyleRobert D., “A Review of Whistle Blower Protections and Suggestions for Change,”Lab. L.J., 1990 (1990): 821–30; DevineThomas M.AplinDonald G., “Whistleblower Protection—The Gap Between the Law and Reality,”How. L.J., 31 (1988): 223–39; HalbertTerry Ann, “The Cost of Scruples: A Call for Common Law Protection for the Professional Whistleblower,”Nova L.J., 10 (1985): 1–27; HowardJohn L., “Current Developments in Whistleblower Protection,”Lab. L.J., 39 (1988): 67–80; KohnStephen M.KohnMichael D., “An Overview of Federal and State Whistleblower Protections,”Ant. L.J., 4 (1986): 99–152; MalinMartin H., “Protecting the Whistleblower from Retaliatory Discharge,”U. Mich. J.L. Ref., 16 (1983): 277–318; MassengillDouglasPetersenDonald J., “Whistleblowing: Protected Activity or Not?,”Empl. Rel. L.J., 15 (1989): 49–56; and MiceliMarcia P.NearJanet P., Blowing the Whistle; The Organizational and Legal Implications for Companies and Employees (New York: Lexington Books, 1992).
7.
In Pickering v. Board of Education (391 U.S. 563 (1968)), the United States Supreme Court ruled in favor of a public school teacher who had been dismissed for publishing a letter critical of the Board of Education. The Court held that “absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment” (id. at 574).
8.
Id. See also Connick v. Myers, 461 U.S. 138 (1983). Furthermore, the Supreme Court has indicated that constitutional remedies would not be available to federal whistleblowers where administrative remedies already exist (Bush v. Lucas, 462 U.S. 367 (1983)).
9.
29 U.S.C. § 158(a)(4) (protecting unionized employees who testify or file charges regarding illegal, unfair labor practices).
10.
For a comprehensive listing of statutes with whistleblower provisions, see MiceliNear, supra note 6, ch. 6, tbl. 6–1.
11.
5 U.S.C. § 2302(b)(8) (1978); and 5 U.S.C. § 1201 et seq. (1989).
12.
5 U.S.C. § 2302(b)(8)(A).
13.
State and federal whistleblower laws may regulate the same area, or even conflict. Although the power to regulate health and safety is traditionally reserved for the states under the Tenth Amendment (see, for example, Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707, 105 S. Ct. 2371 (1985)), federal law may preempt state law under the Supremacy Clause (U.S. Const, Art. VI, cl. 2) if the state law conflicts with federal law. Federal preemption may also occur if the federal law constitutes a reasonable exercise of a congressional power and purports to govern the same area regulated by the state. Federal preemption may be expressly mandated by statute, or implied (Hillsborough, 105 S. Ct. at 2375).
14.
The first major case to recognize the public policy exception appeared in 1959 (Petermann v. Teamsters Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959)). Other states have joined California in acknowledging the exception (see KohnKohn, supra note 6, pp. 109–10).
15.
Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505, 512 (1980). The court nevertheless ruled that the plaintiff did not state a cause of action for wrongful discharge in this instance.
16.
85 Ill. 2d 124, 421 N.E.2d 876 (1981).
17.
Whistleblowers may also sue for breach of express contract if the employer's retaliation violates a company personnel manual, or for breach of implied contract if the employment relationship contains an implied covenant of good faith and fair dealing (see Pierce, 417 A.2d at 512).
18.
See MiceliNear, supra note 6, ch. 6, tbl, 6–2; and Barnett, supra note 6, tbl. 1.
19.
See supra p. 90.
20.
Barnett, supra note 6, tbl. 2.
21.
The states are: Pennsylvania, West Virginia, and Connecticut.
22.
Black's Law Dictionary (St. Paul: West, 6th ed., 1990), p. 693. See Palmer v. Brown, 242 Kan. 893, 752 P.2d 685, 690 (1988).
42 C.F.R. § 50.103(d)(13) (1993). At the time of writing, a Notice of Proposed Rulemaking announcing the forthcoming whistleblower protection regulation has not been issued by the DHHS.
29.
Compare the PHS Act § 493(e)(1) and the CSRA § 2302.
30.
PHS Act § 493(e)(1)(A).
31.
Any disclosure of information, which a federal employee reasonably believes evidences “(A) a violation of any law, rule, or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,” may be protected by the act (5 U.S.C. § 1213(a)).
32.
The CSRA, as amended by the Whistleblower Protection Act, is enforced by the Office of Special Counsel and the Merit Systems Protection Board (5 U.S.C. §§ 1211–14, 1221). As noted above, whistleblower protections under the NIH Act will be promulgated in future regulations. The Conference Report recommending the final version of the NIH Act suggests a “mechanism for the review and adjudication of allegations of retaliation.” The conferees propose that “any regulations issued in fulfillment of HHS's obligations should, where the whistleblower consents, allow for the possible adjudication of disputes through an arbitration proceeding conducted under the auspices of the American Arbitration Association” (H.R. Conf. Rep. No. 100, 103d Cong., 1st Sess. 107 (1993)). The precise mechanisms for preventing and responding to retaliation under the NIH Act will be established by the secretary through regulation.
Id. at 287. Because the district court failed to apply this standard, the Supreme Court vacated the lower court's judgment and remanded the case for further proceedings.
36.
See supra p. 90.
37.
5 U.S.C. § 1221(e)(1), (2) (emphasis added).
38.
43 M.S.P.R. 651 (1990).
39.
Id. at 659.
40.
Id. at 663.
41.
Id. at 661 (citing 135 Cong. Rec. H749 (daily ed., Mar. 21, 1989)). See likewise McClellan v. Dept. of Defense, 53 M.S.P.R. 139 (1992); Caddell v. Dept. of Justice, 52 M.S.P.R. 529 (1992); and Rupert v. Dept. of the Navy, 51 M.S.P.R. 467, 474 (1991) (circumstantial evidence may be sufficient to show that whistleblowing was a contributing factor to the retaliation).
Id. at § 596. See also Gray v. Allison Division, General Motors Corp., 52 Ohio App. 2d 348, 370 N.E.2d 747, 750 (1977).
48.
See Restatement (Second) of Torts § 595. See also Bell v. Bank of Abbeville, 38 S.E.2d 641, 643 (S.C. 1946).
49.
See Restatement (Second) of Torts § 594. See also Afro-Afro-American Publishing Co. v. Jaffe, 366 F.2d at 656 (“Historically a [conditional] privilege has been marked out for the person who publishes an alleged libel in the bona fide prosecution of his own interests….”); and Kenney v. Gurley, 208 Ala. 623, 95 So. 34, 37 (1923).
50.
See Gray v. Allison Division, 370 N.E.2d at 750 (“The concept of privilege holds that conduct which involves a specific interest of social importance merits protection and should be immune from liability.”).
51.
See Restatement (Second) of Torts § 599 comment a.
52.
See supra note 49 and accompanying text.
53.
See, for example, Bell v. Bank of Abbeville, 38 S.E.2d at 643 (in the case of a privileged communication, “the presumption of malice is rebutted. The effect is to cast upon the plaintiff the necessity of showing malice in fact—that is, that the defendant was actuated by ill will in what he did and said, with the design to causelessly and wantonly injure the plaintiff.”). See also Gray, 370 N.E.2d at 750; Louisiana Oil Corporation v. Renno, 157 So. 705, 708 (Miss. 1934); and Kenney v. Gurley, 95 So. at 37.
