President Obama Signs Directive Expanding Whistleblower Protections

To the delight of many concerned about civil liberties and government accountability, President Obama recently issued a directive expanding rights of employees in the intelligence community who report waste, fraud and abuse[1].  These “whistleblower” protections have come into focus in light of the Julian Assange wiki-leaks scandal.  There have been numerous prosecutions in recent years under the Espionage Act[2].  Civil liberties groups expressed concern for the rights of intelligence community workers.

The directive applies to employees serving in the Intelligence Community, particularly the Central Intelligent Agency, Defense Intelligence Agency and National Security Agency, or employees who are eligible for access to classified information.  It protects the rights of the aforementioned employees, mandates review procedures, and emphasizes agency accountability.  Some of the key elements of the directive include:

  • Prohibits retaliation of a protected disclosure by an Intelligence Community employee
  • Prohibits retaliatory actions against employees’ security clearances and other personnel actions
  • Requires each agency to implement a review process and consistent due process rights
  • Provision of appeal rights
  • Requirement of agency programs for outreach, education and counseling on new rights.

Despite the directive, a chorus of groups has called for great employee protection and more action from Congress.  It is in Congress’s discretion to statutorily enact President Obama’s directive and expand the workers covered by the directive.

No Tipping Policies under the Massachusetts Law

Massachusetts Tips Act does not bar employers from instituting a no-tipping policy Meshna v. Scrivanos, 2012 WL 414476 (Mass. Super. 2012).

Summary:  The Superior Court held that no statute prohibits employers from adopting and enforcing a policy that prohibits employees from accepting tips from customers.  Wait Staff employees of a Dunkin’ Donut brought this action against the franchisee-owner who instituted a policy that required employees to return any tips to the customers who left them.  One of the main issues was whether G.L. c. 149, §152A(b), also known as the Tips Act, prohibited employers from instituting a no-tip policy for their employees and patrons.  Court held that the language of the Tips Act does not explicitly prohibit employers from adopting such policies and there was no valid reason to adopt a broader interpretation of the statute.

Discussion:The language of the statute forbids employers from requiring or accepting payment from the tips collected by its employees but it does not specifically state that employers are forbidden from instituting a no-tipping policy.  Although the Court indicated that a broader interpretation prohibiting such a policy may be proper when customers of the establishment have a reasonable expectation that their tips would go to the employees, there was nothing in the statute or its legislative history suggesting that employers are prohibited from enacting a “policy that is clearly and conspicuously announced, so as to preclude any such reasonable expectation.”  The Court further recognized that employers may have a legitimate interest in adopting a no-tipping policy, such as preventing undue favoritism or unfair pressures.  The Court noted that employers may also decide that tipping is inconsistent with the desired atmosphere of the establishment or that accounting for the tips may cause undue administrative burden.  Finally, the Court emphasized that even if such interests do not conflict with the Tips Act, a no-tipping policy must be “clearly and effectively announced to defendant’s customers, such that they could not reasonably believe that money left as tips would benefit employees.”

Implications: This case is the first to directly address the issue of no-tipping policies.  The employer bears the responsibility of effectively communicating this policy to its customers.  Although this case law applies generally to private sector service employees, it does not apply to public employees, as G.L. c. 248A prohibits them from accepting any gratuities.