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Business Litigation Alert: "U.S. Supreme Court Set to Decide High Profile Whistleblower Case"

On November 4, the U.S. Supreme Court heard the case Department of Homeland Security v. MacLean - a whistleblower protection case that is being closely watched.  At issue is whether an employee can be terminated for disclosing sensitive security information, even if the employee believes it to be in the public’s best interest. 

The case involves a former US Air Marshall, MacLean, who disclosed to the media plans by the TSA to significantly scale back the deployment of Air Marshalls due to budget cuts.  MacLean was terminated due to this disclosure; however, he claimed that the disclosure fell under the Whistleblower Protection Act because he believed the information disclosed a threat to public safety.  The government disagreed, arguing that his disclosure of sensitive security information was “specifically prohibited by law” and not protected by the WPA.

This case raises an interesting issue for companies: Can you terminate a whistleblower for disclosing sensitive information?  Until the Court officially addresses the issue, here are some steps that can help you avoid a similar situation.

1.       Information control.  It cannot be stressed enough how critical it is to control access to sensitive information and to control how that information is disseminated.  Strict policies should be in place to protect leaks.

2.       Policies.   Policies should be in place to address how your company will handle an information leak.  The policies should be detailed in terms of the type of leak and specific steps that should be taken based on the sensitivity of the information disclosed.

3.       Internal channels.  Employees should also have internal channels to anonymously voice concerns about your company so that they have a realistic alternative to going to media outlets or other external publication networks.

The November 4 arguments seem to indicate that the Court will side with MacLean, ruling his disclosure is protected by the WPA and his termination was unlawful.  However, until the Court announces its decision in 2015, the issue is still up in the air.
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