Legal Principles in
Over the past fifty years courts and administrative agencies have been developing a law of whistleblowing. Certain themes reappear in numerous contexts, such as whether internal whistleblowing should be protected, whether federal laws should preempt state laws, whether employees must "blow the whistle" through their chain of command, and what types of proof are necessary in order for an employee to prove discriminatory motive. Of course, many of these issues are resolved on a statute-specific basis. For example, the Whistleblower Protection Act (covering federal employees) sets forth a statutorily mandated burden of proof. But beyond specific statutory mandates, many general legal principles are applicable in most whistleblower cases.
The vast majority of whistleblower statutes are silent on basic jurisprudential issues. Consequently, when facing a new issue under a particular enabling statute, courts and administrative agencies often rely upon established precedent under other whistleblower laws in guiding their interpretations. Moreover, the U.S. Department of Labor (DOL), due to its jurisdiction over nine important and often-used whistleblower laws (including OSHA, the environmental and nuclear whistleblower statutes, and the Surface Transportation Assistance Act), has developed an extensive body of case law carefully interpreting numerous issues that arise in the context of whistleblowing.
This chapter explicates many of the basic legal principles and themes that continuously reappear in whistleblower litigation.