Employes Who Snitch

...Their assistance is essential to the successful enforcement of most corporate, regulatory, and consumer protection laws...

...Why not...

...The employer would be liable to the employe for all damages suffered as a result of the dismissal as well as at least $25,000 in punitive damages...

...The problem of having the Government undertake to protect individual rights in the private sector, however, is the difficulty of balancing all the competing social interests...

...Secondly, the canned crusader may find the union unwilling to press his claim for reinstatement because it conflicts with other union interests...

...But agencies are reluctant to use this power...

...Even if his claim is taken to arbitration, he will likely face a company charge that he breached the duty of loyalty owed by an employe to his employer—as vague a crime as the Army's catch-all about "conduct unbecoming an officer and a gentleman...

...Two hundred State Department employes signed a letter opposing President Nixon's decision to send troops into Cambodia...

...It is the result, first, of mostly honest men looking the other way when confronted with wrongdoing...

...The Federal Civil Service Commission guidelines on protest take a fairly narrow reading of the cases, and interoffice memos from superiors banning statements that would "embarrass the agency" persist...

...Unfortunately, however, it is not entirely clear that these statutes apply to the vindictive firing of an adverse witness-employe...

...The men who do offer in-house criticism, and are unheeded, usually either quietly resign or quietly sell out...

...The real drawback of such a lawsuit is that it would probably not of itself be sufficient to remove the widespread and institutionalized fear which stops employes from revealing company wrongdoing...

...Initiation and power to change policy and practice would continue to reside in the organization and its personnel...

...Beilenson would give the victimized employe-witness a right to sue his employer...

...Court redress is a long and costly procedure...

...Finally, the danger of fictitious claims of abusive dismissal can be handled by a number of evidentiary techniques available to courts...

...For those who have mortgages and children and just are not young anymore, the better part of valor may be to submit to management's improper demand of silence...

...As with the Beilenson bill, no powerful lobby is likely to promote general statutory limitations on the employer's right of discharge...

...But organizations are hard nuts to crack...

...Given this organizational perspective, awarding damages to discharged snitchers would be no more than a rear-guard action to protect those responsible for the mistakes...

...But there are areas of concern to the public—as, for example, uncovering frauds, thefts, and serious improprieties—which require that the informer not be muzzled by employer censorship...

...Government workers, unlike other employes, can appeal to the courts...

...Further, punitive damages should be awarded as deterrence against future employer perversion of the discharge power...

...Police officers rarely testify against their brother officers...

...Indexed...

...What is needed is the type of measure introduced in the California legislature by state Senator Anthony C. Beilenson in response to the Finefrock firing...

...The chances of legislative reform in this area, however, are remote...

...Employes like Fitzgerald and Fine-frock face an agonizing decision...

...It is a ticklish legal problem...

...In a brilliant satire, Art Buchwald characterized the Pentagon's decision to oust Fitzgerald as an economy move: his salary was nothing compared to the millions it cost the Pentagon to defend itself against Fitzgerald's disclosures of waste and inefficiency...

...Their revelation of rottenness will likely bring discharge (the organizational equivalent of capital punishment), jeopardize future employment and professional standing, and destroy friendships...

...They have used the tactic of soliciting proxies for reform proposals to turn annual shareholder meetings into forums for protests, to force corporate directors to think about matters that until now they could ignore...

...The "just cause" provisions included in collective bargaining agreements ("Employes covered by this agreement shall not be suspended or discharged except for just cause . . .") provide some defense...

...Without their aid, outrageous business and Government practices—such as price-fixing, pollution, unsafe and shoddy products, food and drug violations, misappropriations, mismanagement, and so on— would go undetected and unreported...

...The curtain of secrecy shrouding private corporations and public agencies is generally not the result of corruption or conspiracy...

...and the knowledgeable men are nearly all inside...

...The second and more common type of snitcher situation is where employes criticize the system, but not as petitioners or witnesses before a public agency...

...The practical result, however, falls short of insuring unionized workers their civil liberties...

...It negates any motivation to report and police illegal activity...

...Clearly the employer has the right to expect a reasonable amount of loyalty from his employes, and to demand confidentiality in everyday business, in contract negotiations, trade secrets, client and personnel lists, and the like...

...And we seem to have reached that point in some situations involving the personal rights of employes...

...Urgently needed due process and free expression safeguards for employes have been suggested...

...As suggested by Gary Sellers, counsel to Ralph Nader's Center for Study of Responsive Law, a better delineation of their rights and remedies should be spelled out in an Employe Bill of Rights and adopted by union leaders and by the Civil Service Commission...

...Some have said the employe should have a kind of property right to his job...

...Secondly, employes are under heavy social pressure to remain silent...

...And employers might still consider a settlement a cheap way to buy out an unwanted employe...

...And when George Powell, maintenance superintendent of the Southern California Rapid Transit District, answered the questions of a Los Angeles Times reporter about dubious RTD bus sales, he, too, was ridden out on a rail...

...However, on occasion, Government intervention may be the lesser evil...

...As Buchwald described it, Fitzgerald's failure was not understanding that "with the Air Force, as with all the military services, it's much more expensive to defend a mistake you made than to let the mistake go by unnoticed...

...Criticism or dissent requires knowledge...

...632 pages $8 postpaid The Progressive MADISON, WISCONSIN 53703 sible kinds of redress it may be helpful to divide snitching situations into two main types: speaking out before a public agency, and speaking out before a private, non-governmental source...

...Most state and Federal laws make it illegal to threaten, influence, intimidate, impede, or injure any witness in connection with a trial or public proceeding...

...The first type includes employes who appear as witnesses before courts in civil and criminal cases, and before grand juries, regulatory agencies, and legislative investigating committees...

...A few, such as Adolph Berle, have advocated taking all the checks imposed on Government power by the Constitution and applying them wholesale to sectors of massive private power, chiefly large corporations...

...However, the exact limitations on fighting government policies within or out of channels are still unclear...

...Even if they were enforced, which is unlikely, it would be of slight satisfaction to the former employe, now unemployed...

...To force the employe-witness to testify at his own peril is to penalize him for fulfilling his civic duty...

...Thus, liability should be imposed upon an employer whose "spite firing" of an employe is done for an ulterior purpose and as a means of duress...

...In addition, efforts should be made to improve existing protections of the rights of union workers and civil servants...

...At present, the employer is in effect the sole judge of how far those on his payroll may go in objecting to his policies...

...This would not leave the employer wide open to informing by employes motivated by malice rather than civic duty...

...Some check on the private employer's unlimited power to dump an employe who discloses company wrongdoing or who balks at committing a fraud is important...

...The genuineness of a claim might reasonably be guaranteed, for example, by a presumption that the discharge was for good cause, thus shifting the burden to the employe to show that his firing was motivated by reasons violative of his personal freedom...

...They do not want to get involved...

...With no strong arbitration precedents in the area of employe expression, the rebel cannot count on either complete or consistent protection...

...For details, see "General Telephone's Fickle Finger," by Timothy Ingram and Jerry Finefrock, The Progressive, September, 1969...

...Frequently these internal channels force the employe to take his protests directly to those about whom he is complaining...

...As administrative agencies they have a range of expertise, negotiation possibilities, and remedies typically wider than those available to courts...

...In part this is because as subordinates within sprawling bureaucratic structures they do not feel personally accountable for unsavory practices...

...Again, it is the corporate professionals and executives—those with the greatest day-to-day impact on decisions affecting the environment and consumers—who have no protection whatsoever from employer duress...

...A few well publicized incidents of dissent by Federal workers might indicate some are taking that statement seriously...

...Any worker who launches an attack on his employer with serious doubts as to the truth of the charges cannot fairly claim that his discharge abridges his free speech...

...Early detection of unsavory business and government practices which harm the public health, safety, and pocket-book is essential...

...But despite some encouraging signs, only a few—either in government or industry—are talking...

...One provision in the code of ethics for Federal Government employes (Copyright © 1970 by Timothy H. Ingram) TIMOTHY H. INGRAM, a graduate of Stanford and of the University of Southern California Law School, is an associate with the National Educational Television series, "The Advocates...

...With this in-house ombudsman the employe would not have to go to outside sources to snitch...

...For this they should be commended, not reprimanded...

...The real trouble with these criminal prohibitions is that they provide no specific redress for the injured employe...

...It would be an appropriate extension of their authority to permit them to deal with such crucial employe civil liberties as freedom of speech...

...In recent months lower courts have awarded damages to a California lifeguard who had been beached for writing newspaper articles about surfer drug use and lifeguard problems, annulled the suspension of New York City social workers who had protested to Federal authorities about unduly heavy case loads, and invalidated the dismissal of a public school teacher who had criticized school officials...

...These examples are not uncommon...

...First, as a practical matter, the complaining employe must have some appearance of dignity and professionalism or the public will dismiss his protest as the rantings of a malcontent...

...In similar fashion, when telephone-installer Jerry Finefrock testified before the California Public Utilities Commission about General Telephone's inferior service and objectionable sales practices, General reversed the charges and hung up on him...

...and he must base his disclosures on things learned from everyday employment, not on confidential records secured from the boss's private files...

...Legal writers have suggested possible approaches...

...The first important extension to Gov". . . a really fundamental need is to insure democracy within big businesses . . ." ernment employes of the right to criticize came in a 1968 Supreme Court case, Pickering v. Board of Education...

...Moreover, the corporate hard-hats holding a "Your company, love it or leave it" attitude are depriving themselves of a useful mechanism for reform, capable of correcting an institution's seemingly unlimited capacity for organized error...

...Inadequate as arbitration and court action may be, they do provide union and Government workers some leverage...

...Either the Commission was uncertain about the scope of its protective powers or it viewed, rather myopically, the telephone company's decision to fire Finefrock as being solely within management's discretion...

...A court-created limitation on arbitrary employer power is more likely to evolve...

...His truthfulness cost him his job and twenty-three years seniority, as well as his house and most of his savings...

...So have agency and court protection of employe-witnesses...

...Part of its code of ethics is an arrested sense of honor which prohibits snitching...

...In other words, the really committed employes, rather than escaping from an objectionable state of affairs, are willing to risk expulsion by appealing to higher authority or public opinion to force improvement...

...This could be rectified by requiring every corporation to add to its man"• . . employes are under heavy social pressure to remain silent/' agement a new member—an inspector general—who would be charged with responsibility for receiving employe complaints in confidentiality, protecting the job interests of employes entering complaints, and investigating those complaints...

...This traditional, absolute right of discharge has been whittled down in a few respects, the most notable example being state and Federal laws prohibiting a discriminatory firing based on race, creed, or color...

...The rare birds (the snitchers) who choose to stick it out and publicly disclose organizational misbehavior are quickly branded and blackballed as traitors, spies, back-stabbers...

...Finefrock, after giving testimony unfavorable to his employer before the California Public Utilities Commission, found his request for Commission asylum denied...

...The legal system starts with a presumption, and properly so, against Government protection of employes in the private sector...

...Union members can appeal a groundless bouncing to a labor arbitrator...

...The law has pretty much adhered to the age-old rule that private employers have unfettered discretion in dealing with employes: they may dismiss them at any time for any reason, good or bad, or for no reason...

...Any large organization, public, private, or military, develops a life and purpose and truth of its own, and lays first claim to the moral judgments of its members...

...They prohibit bribery and the physical injury of witnesses, but more explicit statutory provisions may be necessary to outlaw the economic intimidation of witnesses...

...Certainly the policies behind the First Amendment and the right to petition the Government for redress of grievances support, if not guarantee, this proposition...

...First, free speech is hampered because gripes about scandalous company practices usually must be processed through union grievance machinery, with union and management resolving the question...

...Union members and Government workers have some special sources of protection, but all other employes are simply without safeguards against arbitrary reprisals...

...and establishment of corporate inspector generals...

...Present corporate grievance machinery often stifles dissent and drives even the most mild-mannered to go outside official channels to be heard...

...After revealing to a Senate subcommittee a $2 billion cost overrun in production of the C-5A military transport, he was stripped of his primary duties at the Pentagon, and reassigned from supervising major weapons contracts to investigating cost problems of a twenty-lane bowling alley in Thailand...

...extension of the authority of fair employment practices commissions...

...There is a dangerous tendency for workers to become minor Eichmanns and to absolve themselves of responsibility by rationalizing, "I'm just doing my job...

...Whether the atmosphere will be cleared by these reforms depends in the final analysis on the attitudes of bureaucrats and businessmen...

...Immunity here is imperative...

...Thus it is not by accident that the common pleading in both business crimes and war crimes is that top management did not know about the violation and lower officials were simply following orders...

...The employe must at least make a good faith effort to verify his public statements...

...No one likes a fink—yet our initial revulsion at snitching and our concept of employe loyalty may need serious revision...

...Ideally, the advice of men like Robert (Up the Organization) Townsend would be followed, and organizational dry rot eliminated, so that it wouldn't be necessary for frustrated employes to snitch...

...a private damage action for spite firings...

...Executives are learning that to attract and keep good young people in this day of the "participation explosion," they must be attentive to or at least aware of their opinions...

...Thus the retaliatory firing of a testifying employe may be a criminal offense...

...But legal disclosure requirements and external regulation are hopelessly inadequate without the assistance of honest, open employes...

...In cases of police brutality, for example, the silent solidarity of police departments is notorious...

...The Court held that those in public employment may not "constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the [agency] in which they work...

...Lawrence Blades, Dean of the University of Kansas Law School, has suggested basing such a suit on the common law notion that an act, otherwise permissible, may be unlawful if prompted by an improper motive...

...Finally, his job was abolished altogether...

...As a rule, those who fink are ostracized, lied about, investigated, demoted, or dismissed...

...Presumably the right to inform, so fundamental to the effectiveness of a law, is inherent in each piece of legislation...

...In suggesting pos1970 The Progressives 62nd Year All twelve issues of The Progressive published in this historic year are now available in a handsome bound volume, with your name stamped in gold on the cover...

...Senator William Proxmire has asked the Justice Department to determine whether Secretary of the Air Force Robert C. Seamans violated Federal law by the harassment and sacking of Fitzgerald in apparent reprisal for Fitzgerald's testimony in the C-5A case...

...The employer's prerogative to make independent, good faith judgments about retaining employes is important in a free enterprise system—but not when it is perverted into a mechanism for gagging employes and coercing them into compromising their professional ethics and engaging in fraud or criminal activity...

...The problem is that employes are often the only ones who know where the bodies are buried, yet they are being gagged by institutional coercion and the fear of a retaliatory firing...

...states that "any person in Government service should put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department...

...The most likely candidates for handling cases of private employment abuses are state and Federal fair employment practices commissions...

...Employes who snitch—those who publicly blow the whistle on their boss— generally fare badly...

...A less ethereal and more traditional approach would be judicial recognition of a private damage action against the employer for a retaliatory firing...

...They must learn to attack the problems that are revealed by snitchers, rather than punish the snitchers...

...Recent efforts such as Saul Alinsky's "Proxies for People" and Ralph Nader's "Campaign GM" have attempted to open up giant corporations and to make them more responsive to the public...

...Further, it can be argued that a governmental body, basic to its very purpose of receiving public complaints, has the inherent power to protect those who testify before it...

...While these efforts are first steps toward developing corporate consciences, a really fundamental need is to insure democracy within big businesses, so that the insiders themselves will be encouraged to speak out and to exercise their professional and civic duty to report malpractices...

...An in-house Ralph Nader is needed...

...A group of Justice Department lawyers "rebelled" last fall against Administration civil rights policies...

...Further, no one is suggesting that an employer be required to keep a liar in his employ...

...These commissions now protect an individual who is fired as a result of his race or religion...

...Snitchers, in fact, are often a firm's most loyal members, for it takes a greater degree of attachment to stay with a firm and to protest than it does to "opt out," by remaining silent or moving on...

...What is necessary, then, is to keep knowledgeable employe-critics inside the organization and to provide them with effective complaint mechanisms...

...By analogy, a property owner, although normally free to build fences on his land, may be held liable for erecting a "spite fence" with no other purpose than the vindictive one of annoying his neighbor...