Whistleblowing: The Law of Retaliatory Discharge, Third Edition, With 2016 Supplement

This treatise provides in-depth discussion of whistleblower protections and related litigation under the Sarbanes-Oxley Act, The Dodd-Frank Wall Street Reform and Consumer Protection Act, and other applicable federal and state laws.


The Third Edition contains a new chapter that provides an overview of federal laws containing whistleblower protection. This chapter not only outlines the subjects on which whistleblowers in the private sector receive protection under federal law, but also explains burdens of proof in whistleblowing claims brought pursuant to federal statutes. A new section examines the increasing number of state statutes that contain whistleblower protections for employees who disclose wrongful behavior on particular topics (such as abuse of patients in nursing homes).

The Third Edition includes discussions of:

  • Lawson v. FMR LLC, in which the Supreme Court held that employees of private contractors and subcontractors of public companies are protected by the Sarbanes-Oxley Act’s whistleblower provisions. 

  • University of Texas Southwestern Medical Center v. Nassar, in which the Supreme Court held that a Title VII retaliation plaintiff must prove that “his or her protected activity was a but-for cause of the alleged adverse action by the employer.”  The Third Edition explains how this case is likely to affect retaliation claims under various federal and state whistleblower protection statutes.

  • Lane v. Franks, in which the Supreme Court held that the “First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job duties.”  This is the first Supreme Court case that has explained the Garcetti limitation on whistleblowing claims that allege infringement on government employees’ First Amendment rights.

Additionally, the Third Edition includes updated material on recent DOL ARB decisions and outlines the revised OSHA investigations manual governing whistleblowing complaints filed with the DOL. 

The 2016 Supplement discusses: 

  • enforcement guidance on retaliation claims issued by the EEOC; the first EEOC guidance on this topic in nearly 20 years;
  • analysis of the Whistleblower Augmented Reward and Non-Retaliation Act of 2016, the federal Defense of Trade Secrets Act, the revised administrative rules governing the handling of complaints under SOX, Dodd-Frank, FSMA, FSRA, and National Transit Systems Security Act, the new Whistleblower Investigations Manual promulgated by OSHA, pending legislation to expand public access to documents under FOIA, as well as the need for employer whistleblower policies to incorporate the requirements of new and pending legislation;
  • efforts by regulators to prevent employers from using confidentiality provisions in settlement agreements that might chill whistleblowing;
  • an update from the SEC on “bounties” awarded to whistleblowers under the Dodd-Frank Act and an expanded discussion on when an aggrieved employee has a right to assert a claim of whistleblower retaliation in federal court;
  • state-court decisions that suggest a trend against adoption of the job duties exclusion in whistleblowing cases, state court decisions involving the scope of public policy in wrongful discharge claims, a seminal decision out of Pennsylvania that excludes employees in the judicial branch of state government from the coverage of that state's whistleblower protection statute, and the Washington Supreme Court’s reversal of its prior holding on common law remedies
  • OSHA’s expanded and now permanent ADR program, which is applicable to claims filed under the OSH Act and the 21 whistleblower protection statutes overseen by OSHA;
  • the developing split in federal courts on the appropriateness of the "manager rule" in Title VII retaliation litigation




Bloomberg BNA authors and editors are practicing professionals with insider perspectives and real-life experience. Learn more about this book’s authors and editors.
Janie F. Schulman is a partner in the law firm of Morrison & Foerster, LLP, Los Angeles, CA.

Nancy M. Modesitt is an Associate Professor at the University of Baltimore School of Law.

Daniel P. Westman (deceased) was managing partner for the Northern Virginia office of Morrison & Foerster, LLP. 



View full tables of contents and read the book’s preface or introduction.