In Monday’s news, the Golden Corral discount buffet chain got some unwanted national publicity when the YouTube video above, showing how raw meat and other foodstuffs to be served to customers was stored outside near a dumpster at one of its Florida restaurants, went viral. The video was taken supposedly during a health inspection(!) and posted by one of its own chefs. (For details about this incident and similar instances involving the retail food industry, see Olivia Waxman’s article for Time, here.)
The posting of the video to YouTube was a classic example of online whistleblowing.
Websites, blogs, and social media in general have given rise to workers sharing stories of illegal and unethical behavior online, sometimes in lieu of pursuing internal reporting and legal complaint options that they believe will be ineffective. With the ready availability of public forums such as YouTube and Facebook and work-specific sites such eBossWatch and Glassdoor, workers can take their concerns directly to a broader audience.
Some forms of online whistleblowing involve self-identification; others are anonymous. Some mention specific employers and bosses; others do not.
Such online expression should be undertaken with caution, because questions of whether or not it is protected under the law are far from settled.
The Golden Corral chef who posted the video apparently has not lost his job. If he’s fired, it’s possible he’ll have a legal claim under some food safety law, or perhaps a state-based claim for wrongful termination on grounds that his termination violated public policy.
Nevertheless, we need to start with the fact that most U.S. workers are hired at will, which means that they can be fired for any reason or no reason at all. Finding an exception to this broad rule would be the main challenge facing any lawyer representing a client who was fired for online whistleblowing.
Don’t count on claiming First Amendment protections. Private sector workers are not covered by the First Amendment’s free-speech protections, with one exception (Connecticut); public sector workers are covered only in limited instances when the expression relates to a public concern.
Various whistleblower laws and anti-retaliation provisions are most applicable when someone has filed a formal complaint or at least reported illegal or unethical behavior internally. These protections, on the whole, are less to cover reports posted to various Internet sites.
During the past two years, media coverage of National Labor Relations Board decisions concerning social media has led some people to believe (erroneously) that they have a more or less absolute right to criticize their boss on Facebook. It would take a legal memo for me to explain all the reasons why this is not true. Some workers, mostly union members and non-management employees acting as a group, would be covered. Most other employees would not.
It is worth adding that not all unethical behavior raises a direct legal issue. Also, a wrongful accusation of illegal or unethical behavior posted publicly could lead to a defamation claim, especially if it receives widespread attention.
For those interested in learning about the legal and public policy implications of online whistleblowing concerning employment conditions, Professor Miriam Cherry of St. Louis University School of Law has authored a 2012 law review article, “Virtual Whistleblowing” (link to pdf). Here’s the abstract posted to her Social Science Research Network page:
“With the advent of YouTube, blogs, social networking, and whistleblower websites such as WikiLeaks, the paradigm of whistleblowing is changing. The new paradigm for “virtual whistleblowing” is increasingly online, networked, and anonymous. While whistleblowing can take place in many contexts, this symposium article concentrates on the impact of technological changes on employment law whistleblowing. My contention for some time has been that existing regulation has been inadequate to cover existing forms of whistleblowing. Therefore, it is not surprising that existing whistleblowing laws have also failed to keep pace with the changes brought by modern technology. If older laws cannot be made to fit the new paradigm of virtual work, it is necessary to reassess and determine what changes in the law might fit new forms of whistleblowing more appropriately. This article hopes to begin that conversation.”
As Prof. Cherry’s article indicates, this is a murky area under current employment laws for workers and their employers alike. Those who contemplate engaging in some type of virtual whistleblowing should not blithely assume that their identities cannot be discovered or that the law protects them from retaliation. In situations where these factors matter, it would be prudent to obtain legal advice.
This article was originally printed on Minding the Workplace on July 9, 2013. Reprinted with permission.
About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston. He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country. In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.