Leaks are everywhere. They happen in politics, in sports, in the entertainment industry, in people’s everyday lives, and (unfortunately for many of us, myself included) in the roofs and pipes in our homes.
- How do we know that Kyrie Irving wants a trade from the Cleveland Cavaliers? Someone leaked it to a reporter.
- We know the official reason the new Han Solo Star Wars movie changed directors after months of shooting was because of “creative differences.” But how do we know what those specific differences were and how much animosity actually existed between the producers and the now-dispatched directors? Because someone leaked the e-mail exchanges.
- Did you know that the most recent Game of Thrones was available for viewing before this past Sunday’s official airing? Heard someone leaked it online.
- Did you hear that Bob really likes Kate, that their first date is next week and Bob is taking Kate to the place that Kate told Betty (who told Bob) she always wanted to try? John (who works with Bob, but also has mutual friends with Betty) leaked it to me.
It’s no different with politics, where leaks have always been a part of the culture. Except that they are often more newsworthy to the general public and provide a source of debate for the political pundits in the news media. I think it can be objectively said, however, that the existence of “leaks” in politics has taken on an increasingly more pronounced role in the past year. Everywhere you turn, someone is talking about leaks, whether it’s the necessity to stop leaks, how leaks harm our institution, whether we wouldn’t know the actual truth without the leaks, and so on. Everyone’s got an opinion.
Leakers vs. whistleblowers
What’s also interesting is how some political commentators conflate the term “leak” with “whistleblower” or use them as if they are synonymous. Clearly, not every leak of information, documents, or conversations constitutes actual whistleblowing activity. Sometimes the leak is done simply for political gain (to both create a favorable or unfavorable view of the institution or person who is the subject of the information) or to get allegedly newsworthy information (i.e., neither classified nor related to illegal actions) into the public realm.
When it comes to actual whistleblowers, we often think of the brave souls who shed light on invidious and illegal practices by political operatives or money-grubbing corporate executives and corporations that harm individuals or the public good. While this is certainly the more prevalent and traditional view of whistleblowing activity, it isn’t the only one.
In the employment context, there are a variety of laws that protect employees who engage in whistleblowing “activity.” In particular, many states have enacted whistleblower protection laws, which in application can be very broad. New Jersey’s Conscientious Employee Protection Act prohibits an employer from retaliating against an employee who complains about a practice he or she “reasonably believes” is a violation of a law, rule or regulation. This means the employer doesn’t even have to engage in conduct that is violative of any law, rule or regulation, only that an employee complained about something that he or she “reasonably believed” was a violation and that an adverse action occurred as a result of this complaint. That standards sets a very low bar for filing a lawsuit and surviving the pleadings phase, thus requiring employers to expend significant sums in defense costs, even if they do ultimately prevail. A number of other states have similar laws, each with varying levels of breadth and scope.
Bottom line for employers
Just because not every leak constitutes whistleblowing activity, that doesn’t mean that workplace complaints also don’t automatically constitute protected whistleblowing activity. While the complaint may not rise to what you would typically consider to be “blowing the whistle” on the company, be aware that broad state whistleblowing laws could in fact protect the complaining employee from adverse action. While you mull that over, please excuse me. I have to go find someone to fix my roof leak.
