Companies should think twice before suing a whistleblower who has revealed confidential information. Unless the employee has acted excessively or broken criminal laws, such a lawsuit is unlikely to succeed — and may provide the basis for an answering claim of illegal retaliation.
This expert analysis by
TELG principal Adam Augustine Carter and TELG managing principal R. Scott Oswald was published by Law360 on March 31, 2014. The full article is available at Law360. (Site requires paid subscription.)
Risks In Fighting Whistleblowers Over Confidentiality
As the Obama administration and various courts grow friendlier to employees who report their employers' wrongdoing, employers are exploring new ways to fight back.
One tactic: Accusing whistleblowers of illegally revealing confidential information, either by using a common-law claim, such as breach of contract or fiduciary duty, or by claiming violation of federal statutes such as the Stored Communications Act or the Computer Fraud and Abuse Act — or even, in some cases, by urging criminal charges.
Except where whistleblowers have been indiscriminate or reckless, however, such methods are unlikely to succeed. At worst, they may backfire on employers.
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