Each year, the New York University Annual Conference on Labor calls on
outstanding scholars and practitioners in the field to come together to survey
and analyze new developments and trends in U.S. labor law and practice. This
volume reproduces the texts (updated and reworked by the authors) presented at
the 2007 Conference, the 60th in this venerable and highly influential series,
at which the theme was “Retaliation and Whistleblowers” .
There could not be a more timely exploration of this complex workplace issue.
The United States Supreme Court, in several pending cases and in the recent
landmark cases of Burlington Northern v. White and Garcetti v.
Ceballos, has turned its full attention to workplace retaliation claims.
States and municipalities also continue to struggle in laying out the scope of
permissible claims under state constitutional and statutory whistleblower
provisions and under the common law of wrongful discharge.
Among the new and significant issues considered in this volume are the
new limits on the scope of the cause of action in the wake of Burlington
implied protection of employee activity under ADEA and the FLSA;
the scope of “protected activity” under § 806 of the Sarbanes-Oxley Act;
issues of privilege when investigation counsel are used to inform corporate
state whistleblower laws and the expansion or preemption of common law
protections under the common law tort of wrongful discharge;
NLRA protection of collective protests by non-union workers; and
potential expansion of the formal definition of “jobs” under
Garcetti v. Ceballos to foreclose the first amendment avenue.
Besides papers by panelists at the Conference, ten other leading practitioners
and academics also provide commentary in this volume.
As always, this important annual publication offers definitive current
scholarship in its theme area of labor and employment law. As such, it will be
of inestimable value to practitioners, government officials, academics and
others interested in developments in U.S. employment and labor relations law
Definitive edition of papers presented at the most prestigious and influential
annual conference on U.S. labor and employment law and practice
Comprehensive “snapshot” of the current U.S. legal context of whistleblower
and retaliation activity
In-depth analysis of one of the most controversial issues in current labor law
Benefit from expert analysis of the practical implications of major judicial
decisions concerning whistleblowers and retaliation
Apply the latest judicial interpretations and analytic scholarship to cases
Gain insight into the pervasive role of the Sarbanes-Oxley act in labor law
Editor’s Preface. Center for Labor and Employment Law at NYU School of
Part I. Anti-Retaliation Under Federal and State Discrimination
Laws: Implications of Burlington Northern v. White. 1. Responding
to and Preventing Retaliation Claims; Z.D. Fasman, P. W. Cane, Jr. 2.
When Good Deeds Are Punished: The Legal Landscape of Retaliation and
Whistleblowing; W.N. Outten. 3. Burlington Northern v. White
in the Lower Courts: A Report on the First Year; E. Schnapper.
4. The Theory behind the Retaliation Claim and Some Doctrinal
Implications; D.L. Brake.
Part II. Developments under State and Federal Whistleblower
Protection Laws. 5. Whistleblower Claims before the NASD and NYSE; E.A.
Brecher. 6. State Whistleblower Protection; M.A. Curley.
7. Federal Whistle Blower Laws; E. Taussig.
Part III. Developments under the Sarbanes-Oxley Act. 8.
Investigating and Defending Whistleblower Claims Under § 806 of
Sarbanes-Oxley; W.J. Goldsmith, W. C. Butler, S. M. Goldsmith. 9.
Not All Whistles Blow in Tune: Defining the Scope of “Protected Activity”
Under § 806 of the Sarbanes-Oxley Act; J.F. Fullerton III. 10.
Developments in Whistleblower Cases Under the Sarbanes-Oxley Act; J. Ben-
Asher. 11. Unfulfilled Expectations: An Empirical Analysis of Why
Sarbanes-Oxley Whistleblowers Rarely Win; R. E. Moberly. 12.
Getting the Word Out about Fraud: A Theoretical Analysis of Whistleblowing and
Insider Trading; J. Macey. 13. SOX and Whistleblowing; T.
Part IV. Anti-Retaliation Protections
under the NLRA and Collective Bargaining Agreements. 14. The Right of
Non-Unionized Employees to Be Free from Retaliation for Work-Related
Complaints under the National Labor Relations Act; D.P. O’Gorman.
15. Non-Suit Provisions in Collective Bargaining and Severance Agreements,
and Releases of Claims; G.P. Clark.
Part V. Government Whistleblowers: Implications of Garcetti
v. Ceballos. 16. The Solomon Amendment, Expressive Associations, and
Public Employment; P. M. Secunda. 17. Beyond Garcetti: The
Limits of Protection under the Whistleblower Protection Act of 1989; B.J.
Sapin. 18. Free Speech Rights that Work at Work: From the First
Amendment to Due Process; C. Estlund.
Part VI. Developments Under Wrongful Discharge Law and
Comparative Perspectives. 19. Citizen Employees and Anti-Retaliation Law;
R. Carlson. 20. Whistleblowers: Rights and Protections; E.
Collins, M. Culver. 21. The Troublemaker’s Friend: Retaliation
against Third Parties and the Right of Association in the Workplace; A. B.