#MeToo whistleblowing is upending A century-old legal precedent in US demanding loyalty to the boss

When was the last time you agreed to keep a secret?

Perhaps it was a personal confidence shared by a close family member or friend. Or it might have been in a contract with your employer to safeguard confidential information. Either way, you probably felt a strong sense of obligation to keep that secret.

At least when it comes to the workplace, that’s no accident. In the United States, the idea that workers owe their employers a duty of loyalty goes back more than 100 years. It is deeply ingrained in legal rules and American culture.

But it has been fraying, most recently in the form of former Trump lawyer Michael Cohen’s damning congressional testimony against the president.

This trend was also on full display when the #MeToo movement went viral in 2017. #MeToo was, of course, about sexual harassment and assault. But it was also a form of mass whistleblowing. The movement signaled victims’ willingness – at an unprecedented scale – to defy promises of secrecy to their employers in service of a larger truth by revealing their experiences of workplace harassment.

While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.

Employee fealty

The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.

It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.

The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements.

[embedded content] University of Iowa Law Professor Lea Vandervelde recounts cases from the late 1800s, when business owners persuaded courts that female workers should be ‘faithful’ to their employer.
This duty is also why American courts were slow to protect whistleblowers for disclosing information that betrayed their employer but protected the public interest. As recently as the 1980s, most state courts did not recognize an employee’s right to protest or expose illegal or harmful conduct.

In a 1982 case in Texas, a nursing home fired a nurse’s aid who complained when her boss refused to call a doctor for a patient suffering a stroke. Unmoved by the nurse’s efforts to save the patient, the court dismissed the employee’s case.