The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law

Abstract

This article discusses punitive approaches to whistleblowing - imposing liability on employees for failing to act in the face of wrongdoing. There has been little in the way of in-depth analysis of the subject, as it has been almost universally dismissed as a terrible idea. Punitive approaches to whistleblowing are no longer a matter of mere conjecture, however, with the passage of the Sarbanes-Oxley Act of 2002. I discuss the extent to which the disclosure-related liabilities that Sarbanes-Oxley imposes on attorneys, executives and audit committee members amount to compelled whistleblowing. I then argue that punitive approaches to whistleblowing offer a number of previously unrecognized benefits. Sarbanes-Oxley is a good illustration of how whistleblower duties can be imposed on high-ranking employees, who are best able to bear the social penalties of whistleblowing. Indeed, compelled whistleblowing may serve to reduce the stigma of whistleblowing over time and increase organizational responsiveness to voluntary whistleblowers.