Harmonizing Internal Whistleblower Complaints with ERISA Employee Protections: A Review of ERISA Section 510

By Kernodle, Matthew N. | The University of Memphis Law Review, Winter 2011 | Go to article overview

Harmonizing Internal Whistleblower Complaints with ERISA Employee Protections: A Review of ERISA Section 510


Kernodle, Matthew N., The University of Memphis Law Review


I. INTRODUCTION...... ......................................................... ........460

II. OVERVIEW OF ERISA AND THE PREEMPTION FACTOR OF 29 U.S.C. § 1144 .................................................463

III. STATUTORY CONSTRUCTION....................................... ........ ...465

A. ERISA Section 510 (29 U.S.C. § 1140) ............................465

B. Modes of Interpretation ...................................................465

IV. EMPLOYMENT PROTECTIONS UNDER 29 U.S.C. § 1 140 .........467

A. The Narrow Lens........ ................................................. .....467

1. Third Circuit Analysis: Is the Recent Trend the Correct One?..............................................467

2. Title VII, FLSA, and Other Federal Statutes..............474

B. The Broad Lens. ........ .......................................................479

1. The Relevance of Hashimoto v. Bank of Hawaii.. .... .480

2. Rethinking Textual Connotations....... .................... ...482

3. Statutory Purpose.... ........................................... ........484

V. THE VIABILITY AND APPROPRIATENESS OF USING A BROAD LENS.. ........................................... ...............488

VI. CONCLUSION.... ........................ ..............................................490

I. INTRODUCTION

It does not take much of an imagination for one to envision a corrupt or discriminatory work environment. Stories of workplace illegality are part and parcel of the nightly news broadcast, and the workplace will inevitably continue to be rife with "fraud, waste, and abuse."1 Yet, while the existence of such illegality is to be expected, employees' responses to it are far less certain - in the face of misconduct, they must endure the difficult dilemma of whether or not to report the unlawful behavior.2 Suffice it to say, this may "pose sensitive legal and ethical issues" for an individual employee. While those who report observed illegalities may occasionally receive public praise, encouragement for whistleblowers is not universal. Employers frequently regard whistleblowers as "untrustworthy and dangerous,"5 so whistleblowers "often face retaliation designed both to punish past disclosures and deter future reports of misconduct by others."6 In fact, "[t]here is no shortage of stories to confirm as a general rule that the whistleblower's fate has been rather bleak."7 Yet, although "virtually no legal protections existed for whistleblowers" throughout much of the 190Os, "today . . . states have created legal protection for whistleblowers either by statute or by judicial decision, and numerous federal statutes contain whistleblower protections as well."8

The development of such employee labor protections has certainly brightened the fate of the whistleblower, but courts invariably must wrestle with determining the range of actions that a whistleblower may take without fear of repercussions.9 Notwithstanding a whistleblower 's altruism, a remedy will be unavailable if the controlling anti-retaliation provision has acutely narrow harbors of protection. Recognizing the harsh realities that such a situation can pose for whistleblowers, this Note explores the potential for such a predicament under the Employee Retirement Income Security Act ("ERISA"). Because a circuit split currently exists as to whether unsolicited complaints to management are within the purview of the ERISA anti-retaliation provision,10 the specific nature of a whistleblower's rights under ERISA is immersed in ambiguity. To appreciate what is at stake, consider the following hypothetical:

Meet Phil. Phil is a hardworking and diligent man, and his actions are usually in keeping with his conscientious character. In recent years, Phil worked for Acme Corporation, a local retail enterprise. As a director of human resources for Acme, Phil's tasks were both many and unrelenting, but despite the daily grind, he enjoyed his job. …

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