Whistle-blowing and Third Party Obligations

Employment suggests a kind of contract. That is, when one works for
someone else, then that one generally agrees to perform certain tasks, generally
during certain hours, in exchange for financial remuneration. A job description may
well detail exactly what is expected and what is to be gained in return. Given that,
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, of course,
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. Lets consider
both extremes for a second. First, James Roche, former president of GM:
Some critics are now busy eroding another support of free enterprisethe
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 labeledindustrial
espionage, whistle blowing, or professional responsibilityit is another tactic
for spreading disunity and creating conflict.
Our author notes that the duty of loyalty is only prima facie, that is, it can be
overridden by stronger considerations. Ronald Duska is worried about even this. Do
we have a duty of loyalty? Duska says no, not even a prima facie one. We dont have
one, period, because corporations arent 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.
This latter definition seems to gloss over a problem, though. There is a distinct
difference between a person and a group of persons. I can be loyal to my spouse and
I can be loyal to my family. But, when I am loyal to a group, to what am I loyal? Am I
loyal to the whole group or to its members? If I am loyal to my family, is my loyalty
reducible to individual loyalties, or is it to something larger? If so, what is that larger
thing?
Atomists would argue that the group is merely a collection of individuals and
that loyalty can be only to individuals. But, this seems inadequate because some
groups have greater identities--families for example. They are not merely collections,
but are held together by ties that bind. But not every group is like this. Im in a
group at a ball game or walking down the street--there are not 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. People in a business are bound together by a
division of labor, not for mutual fulfillment and support. In family, they have to
take you in no matter what. No so in business. Just remember the at-will
employment rule. Duska is suspicious of companies who want to portray themselves
as one big happy family.
Duska argues that not only is loyalty not required, but it is probably misguided
as well. Think of the employee who gives 150% and is nonetheless let go in a
restructuring. Lose the romanticism, he says. A company is not a person, but an
instrument. An instrument can be treated as a means only without violating it. When
you elevate an instrument to a moral status, you degrade those who already have
the moral status.
Notice how this works in the dental clinicthe dentist is a professional with
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.
Gifts and Entertainment:
What issues do you see here? Sales reps? Gifts for using products? I know this
is common in the MD world, what about dentistry?
Obligations to third parties:
Look at 1, 3, and 5 on page 370. What do you do?

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 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:
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
whistleblowers 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) 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 whistle-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 Boks 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 wont get it. 4) It must arouse its audience. 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.