BUL 3130 – Chapter 3
Whistleblowing: Conflicting Loyalties
Introduction
The risk and moral ethical duty of whistleblowing
Who are whistleblowers?
What type of organizations?
Disclosures
What is this whole concept of Employment at Will
Introduction (Continued)
Can you Be Fired?
You decide to attend law school part-time, at night (after working hours).
You seem unable to learn the computer applications that are basic to your job responsibilities.
You wear a bright plaid jacket to the office that most peopleincluding your supervisorconsider extremely ugly.
Introduction (Continued)
Can you Be Fired?
You tend to burst into a rage when criticized.
You and your supervisor begin dating.
You take a day off work for a Muslim religious observance.
You miss work frequently because of late night partying.
Case in Action
Sullivan v. Harnisch, page 88
Lets Review and Discuss the applicability
3-1: Employment at Will
General Rule: Employers can dismiss their employees at will for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of a legal wrong.
Is this ethical?
Is this legal?
3-1a: Exceptions to Employment at Will
Public Policy: when we have a general rule, the law will step in when it deems an overreach.
Right to organize and form unions.
Intimidating or coercing its employees with respect to their self organization
Civil Rights Act: Race, national origin, color, religion, sex, age, or disability
Retaliation for employees who report violations (e.g., environmental or workplace safety laws)
3-1b: Exceptions to Employment at Will under Case Law
Public Policy: Courts also set limits in certain situations under contract law
Your employment with the Firm is voluntarily entered into and you are free to resign at any time. Similarly, the Firm is free to conclude an employment relationship with you where it believes it is in the Firms best interest at any time. It should be recognized that neither you, nor we, have entered into any contract of employment, express or implied. Our relationship is and will be always one of voluntary employment at will.
3-1c: Whistleblowing and Professional Ethics
Doing the right thing versus risk!!
Pierce v. Ortho Pharmaceutical Corp. (P.97)
Lets Review and Discuss the applicability
3-3: Public Employees and Freedom of Speech
Who is a public employee?
Do public employees have unlimited protection for speech?
3-3: Public Employees and Freedom of Speech
Marvin Pickering, a public school teacher, was fired for publishing a letter in the local paper critical of the Board of Educations allocation of funds to its athletic program.
He sued, losing in the lower courts. On appeal, however, the Court ruled in his favor.
Do you agree?
False Claims Act: Qui Tam Whistleblowers
Qui Tam: who as well for the king as for himself sues in this matter.
Provision of the False Claims Act
Purpose: Encourage private citizens to come forward with information about entities defrauding federal programs to allow the government a chance to recover stolen funds.
What would be advantages for whistleblower to report internally as opposed to externally? To the organization?
What are the problems with organizational hotlines or open-door policies?
Under what circumstances would a whistleblower not have to report internally?
BUL 3130 – Chapter 4
Privacy & Technology
Privacy & Technology: Introduction
The inherent conflict of technology and our privacy
Privacy concerns for both individuals and communities
Employer control of employees off work actions
Genetic Information Nondiscrimination Act (GINA)
Lets Look at a Hypothetical
Privacy & Technology: Introduction
A college/university plans to monitor all student e-mail.
Ethical/legal/right?
4-1: Workplace Surveillance
Ehling v. Monmouth-Ocean Hospital Service Corp
Lets Review and Discuss the applicability
4-1a: Surveillance at Work: The Debate
Employer v. Employee Interest
Corporate America Examples:
Hospitals nurses/badges/monitoring
Fast food restaurants: point of sale systems
Warehouses: pickers/tablets/measure data and efficiency
Delivery Systems: sensors on trucks tracking data
What does all mean for present day?
4-1a: Surveillance at Work: The Debate
Telematics Concept:
A combination of telecommunications and informatics, is a technology that transmits data from remote sensors to computers for analysis.
Rationale of Telematics?
Benefits for companies
Disadvantages/concerns for employees
4-1b: Surveillance at Work: The Law
Is there an absolute right to privacy?
Expressed vs. Implied right to privacy
What does our constitution say?
Private Sector Determined by:
The obnoxiousness of the means used to intrude; that is, whether it is a deviation from the normal, accepted means of discovering the relevant information; and
The reasons for intruding.
Lets see a case in action!
4-1b: Surveillance at Work: The Law
A man had multiple surgeries after he fell while working as a winch-truck driver. In preparation for a workers compensation trial, and in order to collect evidence regarding the extent of his actual injuries, the employer had him videotaped secretly while he was at home.
Was their intrusion? Lets see the result
4-1b: Surveillance at Work: The Law
Ruling: No intrusion
Holding: Because the activities, the man, carried on in his front yard could have been observed by any passerby, the employers investigation was not offensive or objectionable.
4-1b: Surveillance at Work: The Law
Electronic Communications Privacy Act of 1986
Originally was established as Federal Wiretap Law of 1968
Purpose: makes it illegal to intercept, disclose, or access messages without authorization, would appear to protect workers from electronic eavesdropping.
4-1b: Surveillance at Work: The Law
Exceptions to the Electronic Communications Privacy Act where there is no protections:
Communications that are readily accessible to the general public
Employees give consent to monitoring,
Employees are warned that communications are not private.
Communications made in the ordinary course of business.
4-1c: Functions of Privacy
Four functions in our society
Personal Autonomy
Emotional Behavior
Self-Evaluation
Limited and Protected Communication
4-1c: Functions of Privacy
Four functions in our society
Personal Autonomy
Emotional Behavior
Self-Evaluation
Limited and Protected Communication
4-3: Cell Phone Privacy and the Constitution
Fourth Amendment Considerations
Triggered only when the government is conducing a search
What about private corporations?
Electronic Surveillance a Search?
Courts Balancing Test: judges must decide which counts more weightily, an employees privacy interest or the need of the government (as employer) to conduct a search.
4-3: Cell Phone Privacy and the Constitution
City of Ontario v. Quon, a case involving the search of a public employees text messages. Jeff Quon, a member of the police special-weapons and tactics (SWAT) team in Ontario, California, had been given a text-messaging pager by his department. He and another officer were exceeding their character limits as they used their pagers and were paying for the overcharges themselves each month. In an effort to determine whether it should raise its quota of free messages for employees, the department obtained a transcript of Quons texting, and discovered that most were sexually explicit communications to his wife and mistress. On an average workday, he was sending or receiving 28 messages, only 3 of which were work related. Sergeant Quon was disciplined. He challenged the search of his pager as a violation of his Fourth Amendment rights.
Violation of his 4th Amendment Rights? Lets see on next slide..
4-3: Cell Phone Privacy and the Constitution
Actions amounted to a search
Normally a warrantless search is impermissible under the constitution
Exceptions: Considering the operational realities of the workplace, the Court ruled
A government employers warrantless search is reasonable if it is justified at its inception and if the measures adopted are.
not excessively intrusive.
4-5: Privacy in Genetic Information
Genetic testing is very invasive
Laws protect our health information (e.g., HIPAA)
Foundation of the Genetic Information Nondiscrimination Act (GINA)
Purpose of GINA: Protection of our personal data.
4-5: Privacy in Genetic Information
SEC. 201. Definitions
Genetic Information:
The term genetic information means, with respect to any individual, information aboutsuch individuals genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual.
4-5: Privacy in Genetic Information
SEC. 201. Definitions
Genetic Monitoring:
The term genetic monitoring means the periodic examination of employees to evaluate acquired modifications to their genetic material, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed in the course of employment due to exposure to toxic substances in the workplace, in order to identify, evaluate, and respond to the effects of or control adverse environmental exposures in the workplace.
4-5: Privacy in Genetic Information
SEC. 201. Definitions
Genetic Services
The term genetic services means a genetic test, genetic counseling (including obtaining, interpreting, or assessing genetic information).
4-5: Privacy in Genetic Information
SEC. 202. Employer Practices
(A) DISCRIMINATION BASED ON GENETIC INFORMATION.
It shall be an unlawful employment practice for an employer:
to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment because of genetic information with respect to the employee; or
to limit, segregate, or classify employees in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee , because of genetic information with respect to the employee.
4-5: Privacy in Genetic Information
(B) Acquisition of Genetic Information: Exceptions:
It shall be unlawful for an employer to request, require or purchase genetic information related to employees or their families.
Is this ethical?
4-5: Privacy in Genetic Information
(B) Acquisition of Genetic Information: Exceptions:
(1)Where an employer inadvertently requests or requires family medical history of the employee or family member of the employee
(2)(A) where health or genetic services are offered by the employer, including such services offered as part of a wellness program;
(2)(B) where the employee provides prior, knowing, voluntary, and written authorization;
(2)(C) where only the employee and the licensed health care professional or board-certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services, and the employer receives aggregate, not individuallyidentified, genetic information.
4-5: Privacy in Genetic Information
(B) Acquisition of Genetic Information: Exceptions:
(3)[Where medical history if properly requested with regard to a claim for Family and Medical Leave.]
(5)where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if [certain conditions are met: the employees are given notice, sign consent forms, and are told the results, and the monitoring is either required by law or the employee gives prior knowing, voluntary and written authorization.]
4-5: Privacy in Genetic Information
SEC. 206. Confidentiality of Genetic Information
(a) Treatment of Information as Part of Confidential Medical Record.
If an employer
possesses genetic information about an employee or member, such information shall be maintained on separate forms and in separate medical files and be treated as a confidential medical record of the employee.
(b) Limitation on Disclosure. –An employer
shall not disclose genetic information concerning an employee or member except–
(1) to the employee (or family member if the family member is receiving the genetic services) at the written request of the employee;
(2) to an occupational or other health researcher
(3) in response to an order of a court.
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