Academic journal article South Dakota Law Review

Are South Dakota Employees Afraid to Whistle Their Tune?: An Argument for Expanded Whistleblower Protections in South Dakota

Academic journal article South Dakota Law Review

Are South Dakota Employees Afraid to Whistle Their Tune?: An Argument for Expanded Whistleblower Protections in South Dakota

Article excerpt

This article provides an in-depth analysis of South Dakota's state and common law protections for whistleblower employees. By incorporating a comparison of South Dakota and Minnesota whistleblower laws, as well as a brief overview of the historical development of federal protections to their current status, this article demonstrates South Dakota's need to mature in its protections for whistleblowers. Without whistleblower protections, South Dakota places its workforce at risk of retaliation and its public at risk of fraud.

I. INTRODUCTION

A whistleblower can be anyone; it could be your friend, your neighbor, or even you. (1) The term "whistleblower" describes employees who report an employer's illegal conduct or who refuse to commit illegal acts. (2) A whistleblower may work for a private organization or the government; he or she may work in a school, a church, or even a hospital. (3) Whistleblowers may report a wide variety of illegal conduct. (4) In the past few years, individuals have "blown the whistle" on a variety of issues including, a university's publication of inaccurate job placement statistics; the purposeful overpricing of medication, including Medicaid; and widespread overseas tax evasion. (5) Although some cases become high profile, many whistleblowers go unnoticed by the general public. (6)

Public opinion of whistleblowers varies greatly. (7) Some view whistleblowers as brave individuals who are willing to risk their livelihoods for the public good. (8) In contrast, many others view whistleblowers as tattletales who are only out to satisfy their own "political, ethical, moral, or personal agendas" while embarrassing their co-workers and employers. (9) Regardless of a whistleblower's motives, each time an employee chooses to report his or her employer's illegal behavior, the employee puts him or herself at risk as complex legal and ethical issues arise. (10) From a legal perspective, the choice of whether or not to report an employer's illegal conduct may be perceived as being voluntary; ethically and morally, however, employees may feel strongly compelled and even obligated to report illegal actions. (11) In fact, for many whistleblowers, "[i]t is difficult emotionally, personally, intellectually and professionally to come forward" and report his or her employer, co-workers, and friends. (12)

When deciding whether to blow the whistle, employees must consider several factors. (13) These factors generally include the employee's position in the workplace, the position of the person committing or encouraging the illegal act, the significance of the illegal act, and the culture of the employer. (14) Many whistleblowers also worry they may face retaliation, including discipline, termination, and harassment, even when reporting truthful illegalities in good faith. (15) In addition to retaliation in their present jobs, whistleblowers must consider the permanent damage that reporting may do to their careers. (16) They may be viewed as "troublemakers" by others in their industry and have trouble finding future employment because of the stigma. (17) While many whistleblowers are generally aware of these risks, they may not fully comprehend how large a risk they are taking. (18)

After blowing the whistle, whistleblowers often become isolated. (19) They may become alienated by co-workers and disliked by supervisors. (20) In addition to potentially losing wages due to termination, whistleblowers may incur significant legal debt fighting retaliation from their employers. (21) Due to the debt incurred, whistleblowers may lose their homes and their personal relationships may suffer. (22) Many whistleblowers also face mental illness and thoughts of suicide. (23)

In 2012, an NBC affiliate in California released a story regarding individuals who had blown the whistle on issues including sexual assault, racism, and retaliation within the California National Guard. (24) The news station spoke with nearly two dozen California National Guard members, including Master Sergeant Jessica Brown. …

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