| Labor whistleblowers who are on the job or leave often encounter retaliation from enterprise managers,such as job transfer,demotion,termination of labor contract,workplace bullying,investigation of tort liability,being listed in the industry blacklist and so on.Improve and perfect the identity confidentiality of whistleblowers,the exemption of liability for breach of contract,the protection of labor rights and interests and other measures can reduce the uncertainty of their personal safety,labor rights and interests and strengthen the sense of security and trust of whistleblowers.The United States is the earliest and most developed country in the world in the legal protection of whistleblowers.Therefore,this paper attempts to comprehensively analyze the legal protection of whistleblowers in the United States and its enlightenment,so as to provide reference for the improvement of relevant legislation in China.Labor whistleblowers refer to the workers who find foul or illegal behaviors within the employing units in their work and report them for the purpose of safeguarding social and public interests.The necessity of legal protection of labor whistleblowers lies in:promoting labor whistleblowers’ function as "problem discoverer";eliminating labor whistleblowers’personal risks such as identity leakage,liability for breach of contract,retaliation by enterprises.The main contents of the legal protection of labor whistleblowers include:labor whistleblowers’ identity confidentiality mechanism;labor whistleblowers’ exemption from liability for breach of contract;guarantee measures for working conditions and labor contracts of labor whistleblowers.The global legal practice of labor whistleblowers legal protection includes the practice at the international organization level and the practice at the national level.The national protection mode of labor whistleblowers’ rights and interests is divided into the decentralized legislation mode represented by the United States and the centralized legislation model represented by Britain and Japan.The legal framework for the protection of the rights and interests of American labor whistleblowers includes three aspects:Firstly,the development of statutory law,including:the congressional legislations,such as the Occupational Safety and Health Act,the Whistleblower Protection Act,the Sarbanes-Oxley Act,the Dodd-Frank and Consumer Protection Act;the administrative regulations,mainly constructed with more than 20 administrative regulations published by the Occupational Safety and Health Administration(OSHA)and the Directorate of Whistleblower Protection Programs(DWPP).Secondly,the case law development includes two kinds.Among them,the important case of whistleblower subject is Lawson v.FMR LLC;the important precedents in the case of whistleblowing procedures are Lockheed Martin Corp.v.Admin and Dig.Realty Trust,Inc.v.Somers.Thirdly,the restrictions on the protection of labor whistleblowers in the United States include:(1)Based on the restrictions on the protection of the employer’s right of reputation,the conflict between the employer’s right of reputation and the freedom of speech of labor whistleblowers can be applied to the basic right conflict resolution model of defamatory speech against the right of reputation.The conflict resolution model also particularly includes the restriction of "statement of fact" and the restriction on "expression of opinion".The process of interest balancing generally includes the following two steps:the first step is to consider all the reasons for the dissolution and early termination of labor relations involving the interests of parties such as labor whistleblowers and employers in the case;and the second step is to weigh and evaluate the employer’s interest worth protecting against the interest of the labor relationship’s survival.(2)The consideration of restrictive situation of the collateral obligations of employees,which contains:the collateral obligations of employees that restrict the freedom of speech of labor whistleblowers include the duty of confidentiality and obligations of omission that corporate harming speech.Legislators and judicators need to balance the interests of employees’ collateral obligations and freedom of speech.The specific considerations include:the purpose and justification of reviewing whistleblowing behavior;the justification of employer’s behaviors such as dismissing labor whistleblowers,early dissolution or termination of labor relations.The important topics of labor whistleblowers protection in the United States contain:(1)The determination of the subject scope of the protected labor whistleblowers since the United States lacks a uniform and applicable standard for the identification of the subject qualification;(2)The classification and protection mode of the qualified reporting content,including:violation of laws and regulations,major enterprise mismanagement and abuse of rights that affect the social and public interests,and dangerous situations.(3)The elements of labor whistleblowers protection,including:the cognitive judgment of the illegality of reporting facts-"reasonable belief test";the subjective motivation of the whistleblowers;the need to protect anonymous whistleblowers.(4)The legal reporting procedures of labor whistleblowing,including internal reporting procedures in the workplace,external reporting procedures to competent authorities,and external reporting procedures to social media,etc.(5)The protection and relief mechanism of retaliatory measures,including protection measures of identity confidentiality and anonymity,workplace protection measures,protection measures of legal action,personal safety protection measures,sanctions measures against employers interfering with whistleblowing,and relief measures against retaliatory measures.(6)The legal responsibility of retaliatory measures:the main types are the restoration of labor contract relations,compensatory damages and punitive damages.(7)Protection measures for labor whistleblowers in the field of collective labor relations.As for the legal protection field of labor whistleblowers’ rights and interests in our country,this article combed the central and local levels of legislation,the combination of labor arbitration cases and civil judicial case analysis,found that the existing protection mode and legal relief in the following deficiencies:(1)The existing decentralized legislation mode is difficult to realize the protection of long-term,unification,including:lack of concise,unified and authoritative standards for protection,relief and reward;safeguard the main organization structure allocation imbalance;the difficulty for the legal system of labor whistleblowers meeting the practical needs of protection.(2)The protection subjects of labor whistleblowers are narrow and lack of classification,including:the setting of the protection elements of labor whistleblowers is unreasonable;the reporting procedure lacks integrity and appropriateness;reward systems cannot overcome inherent value conflicts.(3)the protection and relief mechanism of labor whistleblowers subjected to retaliatory measures is not able to meet the practical needs,including:the lack of the identification basis of retaliatory measures;the remedy procedure for retaliatory measures fails;the responsibility bearing rules of retaliatory measures are not reasonable.(4)The difficulty for effectively solving the dispute of retaliatory measures in collective labor relations.According to the experience of U.S.system,the legal system of labor whistleblowers protection in China should be improved as follows:Firstly,the concentrated legislation mode of protection of labor whistleblowers should be clarified,including:properly deal with the conflict of legal value in protection of labor whistleblowers;promote the social co-governance mechanism for the protection of labor whistleblowers.Secondly,a layered and consistent rights protection model should be established from the perspective of"scope-components-procedure",including:expanding the scope of the protection subjects of labor whistleblowers and implementing differentiated treatment;rationalizing the setting of protection elements of labor whistleblowers;improving the hierarchical,stratified,orderly and cohesive reporting procedures;improving the reward system in order to eliminate intrinsic value conflicts;completing the mechanism for identifying the burden of proof and the causal relationship of labor whistleblowers.Thirdly,clarifying retaliatory behavior,specific relief procedures and increasing accountability methods in order to complete the rights and interests relief mechanism,including:rationally establishing the identification standards of retaliatory measures;perfecting the judicial remedy procedure against retaliatory measures;consummating the administrative relief procedure against retaliatory measures;increasing punitive damages for the way of accountability. |
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