Whistle-blowing and Third Party
Obligations
Employment suggests a kind of
contract.
The traditional law of agency places
the employee under a legal obligation to
act loyally and in good faith and to carry
out all lawful instructions. Loyalty
cannot be blind. Morality requires
neither blind loyalty nor total submission
to the organization.
Some thinkers have a problem with
even this degree of loyalty. Let’s
consider both extremes for a second.
First, James Roche, former president of
GM:
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Some critics are now busy eroding
another support of free enterprise—
the loyalty of a management team,
with its unifying values and
cooperative work. Some of the
enemies of business now encourage
an employee to be disloyal to the
enterprise. They want to create
suspicion and disharmony, and pry
into the proprietary interests of the
business. However this is labeled—
industrial espionage, whistle blowing,
or professional responsibility—it is
another tactic for spreading disunity
and creating conflict.
Our author notes that the duty of
loyalty is only prima facie. Ronald
Duska is worried about even this. Do we
have a duty of loyalty? Duska says no,
not even a prima facie one. Corporations
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aren’t the kind of entities to which
something like loyalty can apply.
What kind of object can we be loyal
to? Three schools:
1) Idealists believe that loyalty is
devotion to something more than just
persons, but to some cause or abstract
entity.
2) Social atomists believe that we can
only be loyal to individual persons and
that such feelings of loyalty are not basic
feelings at all--they are explainable in
other terms.
3) A moderate position: idealists go
too far in positing some abstract ideal,
and the atomists reduce things too far as
well. Loyalty is a real relation that holds
between people or groups of people.
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Atomists would argue that the group
is merely a collection of individuals and
that loyalty can be only to individuals.
But some groups have greater identities-families for example. They are not
merely collections, but are held together
by “ties that bind.” Which kind of group
is the corporation? Duska argues that
what binds folks together in business is
not sufficient to require loyalty. Why?
Two functions of business: 1) provide
a good or service, and 2) make a profit,
with the latter being the primary goal.
Duska argues that not only is loyalty
not required, but it is probably misguided
as well.
Notice how this works in the dental
clinic—the dentist is a professional with
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professional obligations. These
obligations are to the profession, not to a
particular clinic or workplace. Thus,
when the practitioners in the clinic are
misbehaving and violating the law, there
is no further duty of obligation to that
clinic that could forbid you from blowing
the whistle. Notice the relationship to
employment-at-will
Conflicts of Interest:
Careful, here. Why do you refer a
patient to this particular specialist? This
can be sticky. Be aware! We must
always have the best interests of the
patient in mind FIRST. What about
retailing?
Gifts and Entertainment:
What issues do you see here? Sales
reps? Gifts for using products? I know
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this is common in the MD world, what
about dentistry?
Obligations to third parties:
This brings us to Whistleblowing.
Whistle-blowing: Some Possible
Definitions
Internal vs. external whistle-blowing:
Internal: follows a formal, prescribed
company policy for bringing to the
attention of upper level management
potentially wrongful actions by the firm
which could endanger the public. Such
whistle-blowing might involve going
over the head of the immediate
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supervisor to higher management. If the
employee follows a prescribed process,
the whistle-blowing is internal.
External: discloses information of
organizational wrongdoing to outside
sources. The employee might have begun
the process internally, then, in the
absence of action, went public. There are
some who argue that unless there are
legal protections in place to protect the
whistleblower, the employee must first
resign and then go public in order to
retain the classification of whistleblower.
(Marian V. Heacock and Gail W.
McGee, “Whistleblowing: An Ethical
Issue in Organizational and Human
Behavior,” Business & Professional
Ethics Journal, Vol. 6. No. 4, pp. 35-45.)
Possible conditions for legitimate
whistle-blowing:
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Norman Bowie: 1) the act stems from
appropriate moral motives of preventing
unnecessary harm to others; 2) the
whistleblower uses all available internal
procedures for rectifying the problematic
behavior before public disclosure (except
when special circumstances preclude
this); 3) the whistleblower has evidence
that would persuade a reasonable person;
4) the whistleblower acts in accordance
with his or her responsibilities for
avoiding/exposing moral violations; 5)
the whistleblower does not see monetary
gain as a result of his or her actions; and
6) the whistleblower’s action has some
reasonable chances of success.
Deborah Johnson: 1) an individual
performs an action or a series of actions
intended to make information public; 2)
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the information is made a matter of
public record; 3) the information is about
possible or actual nontrivial wrongdoing
in an organization. (Cited in Natalie
Dandekar, “Can Whistleblowing Be
Fully Legitimated?” Business &
Professional Ethics Journal, Vol. 10,
No. 1, pp. 89-108.)
Possible conditions for permissible
whistle-blowing:
R.T. De George: 1) a practice or
product does or will cause serious harm
to individuals or society at large; 2) the
charge of wrongdoing has been brought
to the attention of immediate
supervisors; 3) no appropriate action has
been taken to remedy the wrongdoing.
If we add to these three conditions
the following two, then the whistle9
blowing becomes increasingly obligatory
rather than permissible: 4) there is
documentation of the potentially harmful
practice or defect; and 5) there is good
reason to believe public disclosure will
avoid the present or prevent similar
future wrongdoing. (ibid)
Sissela Bok’s conditions:
1) The accusation must be directable to
a person or groups of persons who are
responsible for a threat to the public
safety. If no one can be held responsible,
then the warning would not constitute
whistle-blowing. 2) The danger must be
a present or imminent threat. Past errors
are irrelevant unless they are still
affecting current practices. 3) The risk
must be a concrete risk, a specifiable
one. A general cry of doom won’t get it.
4) It must arouse its audience.
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Inarticulate whistle-blowing does no one
any good. 5) It must not be done
anonymously and 6) it must treat the
accused fairly. (From "Whistle-blowing
and Professional Responsibility" as it
appears in Ethical Theory and Business,
5th edition, edited by Tom L. Beauchamp
and Norman E. Bowie, Prentice-Hall,
1997, pages 328-334.)
When can we not blow the whistle?
We have to ask whether the personal
consequences are too great. If they are,
then the personal sacrifice may well
outweigh the wrong.
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