Skip to main content
Log in

An economic rationale for firing whistleblowers

  • Published:
European Journal of Law and Economics Aims and scope Submit manuscript

Abstract

Organization members disclosing their superiors’ violations of duty are characterized by high ethical standards and, surprisingly often, fired for blowing the whistle. This paper provides an economic rationale for firing whistleblowers in a model where only the “ethical” type of agent can internally report the manager’s violation of duty. Revelation of an ethical type in the organization increases the perceived future probability of detecting and punishing the manager. Replacing the ethical type by an agent of unknown type restores this probability to its initial level, and this is optimal in organizations in which the standard of proof in establishing the manager’s violation of duty is low.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others

Notes

  1. Near and Miceli (1985), Near et al. (1993) and Bowman and Williams (1997) discuss the role of whistleblowing in organizations. On traits of whistleblowers, see Glazer and Glazer (1986) and Brewer and Selden (1998). Whistleblowing may involve current or ex-employees disclosing information about their employers or peers, to sources within or outside the organization.

  2. Laws have been implemented to support and protect whistleblowers. The first attempt in the U.S. is the 1978 Civil Service Reform Act. The Whisleblower Protection Act of 1989 provided further protection to federal employees from demotion or firing for a period of 45 days following the filing of a complaint. Many states now have protective statutes. The latest development on the legal front is the Sarbanes-Oxley Act of 2002, which encourages whistleblowing and extends whistleblower protection to all employees in publicly traded companies for the first time. See Cherry (2004) for a detailed evaluation of the Act.

  3. Cooper and Watkins are named by Time magazine editors as two of their People of the Year for 2002 in acknowledgement of bringing wrongdoing at their own organizations to the attention of superiors. Cooper had alerted the Board of Directors Auditing Committee to problems, despite being asked by the company’s CEO to postpone her investigation. Accountant Sherron Watkins outlined the company’s problems in a memo to then-CEO Kenneth Lay. But the whistles of Watkins and Cooper came too late and much damage had already been done.

  4. A very small fraction of these cases reach the courtroom and even a smaller fraction attracts media attention. See, for instance, Lippert v. Community Bank (11th Cir 02/08/2006), where Russell Lippert, the risk manager of Community Bank was dismissed after addressing critical memos to the bank’s board of directors, audit committee and upper management. The court ruled against Lippert on grounds that his reports were not protected disclosures under the statute.

  5. Some organizations explicitly specify the burden of proof and evidence standards that should be met in establishing violation of duty when a whistle is blown, and the consequences thereof for the parties involved (penalties and rewards) in their internal disclosure procedures. See Barnett et al. (1993) and Lewis (2002). Internal disclosure procedures typically also include the formal channels of whistleblowing, details of the investigation process and the protection accorded to whistleblowers during the process.

  6. Under high information processing costs, however, the principal can optimally discriminate among the sources of information. In addition, as pointed out by Friebel and Raith (2004), it may be optimal for the top management to prohibit “skip-level” communication between the bottom and top layers to prevent conflicts between superiors and subordinates, in particular over hiring and promotion decisions.

  7. An ethical type has a strong sense of professional ethics and responsibility, is strongly in favor of working for the good of the team rather than his own good and assumes these norms should be shared by others in the organization. A natural implication of this preference structure would be a loss of utility from perceived wrongdoing in the organization, which produces a need to initiate corrective actions.

  8. This distinction can be linked to differences in morality and preferences. For instance it may be prohibitively costly for the standard agent to disclose any information/signal about the true state, the fear of losing the job or retaliation outweighing the moral satisfaction from “doing the right thing,” while the ethical agent may incur no such costs and send the report with enthusiasm.

  9. For example, a = 1 would be adoption of a project and a = 0, rejection. The manager may have a benefit from keeping the status quo unchanged and so would prefer rejecting new projects. More generally, the manager’s preferred action could be modeled as a random variable, realized and observed by the manager before she recommends an action. I choose the simple formulation and assume a deterministic interest for the manager.

  10. The uniform distribution assumption as well as the unit-length support simplify the analysis and exposition. The qualitative results hold under any nondegenerate continuous type distribution function.

  11. That is, the principal cannot rule in favor of the whistleblower when the whistle is rather unfounded. There would be no basis-ethical, institutional or legal-to fire and/or penalize the manager when the recommended action is correct with updated probability, say, 95%. A possible “focal” value for \(\underline{\beta}\) would be 1/2, under which the principal could reverse the recommendation only if it is more likely to be wrong than correct.

  12. The assumption that β is determined ex-ante by the principal can be dropped. Rather, β could be made a choice variable within the range \([\underline{\beta},1],\) to result from the principal’s ex-post incentives when deciding on the fate of the recommendation given a submitted signal. The principal’s costs and benefits from d = A, in turn, depend on the updated probability of a wrong recommendation, his potential benefit B as well as the penalties and the rewards specified in the contract. The analysis is relatively simple in the case where β is determined ex-ante and the same qualitative implications follow under both modeling strategies.

  13. Since by assumption on model parameters the manager does not recommend r = 1 when s = 0, r = 1 must be a correct recommendation. However, recommendation of r = 0 can be wrong and the ethical agent then has a choice between blowing the whistle and remaining silent. He will blow the whistle only if he expects d = A (reversal of recommendation) because to accuse when the decision d = M is foreseen is useless, moreover, potentially costly given the penalty f A .

  14. Though the principal cannot introduce outcome-contingent incentives, his options in the two-period version studied in Sect. 4 is extended to include firing the manager and the possibly also the agent at the end of period one if the recommended action turns out to be wrong, that is, if the benefit B is not realized.

  15. See Williamson (1985) for an extensive discussion of noncontractibility.

  16. If the manager’s recommendation were contractible, it would be optimal to pay the manager a recommendation-contingent wage (a bonus if he recommends action a = 1) to correct for the bias against action a = 1. A subset of manager types would then be induced to make the correct recommendation, which would diminish if not completely eliminate the role of whistleblowing in controlling the manager’s behavior.

  17. I focus on contracts that induce acceptance by all manager types (i.e., the manager accepts her contract with probability one or zero), for simplicity. The possibility that the principal offers a contract that only a subset of manager types accept is tangential to the main issues analyzed in this paper. The principal will optimally induce participation of all manager types provided, as I assume in the following analysis, B is sufficiently larger than z and p 0 and p 1 are both bounded away from zero.

  18. A contract that attracts only standard agents is (weakly) dominated. Such a contract would pay base wages w A  = w M  = 0, set R A  = 0, f A  = 0 and always induce the action a = 0. Without any reward and possibility of reverting the manager’s (possibly wrong) recommendation, the ethical type will reject the offer because his expected utility will fall below his outside option. The principal then obtains the expected payoff \(B \cdot p_0,\) which is at most equal to the minimum payoff he can guarantee by not employing the manager, \(B \cdot max \{ p_0,p_1 \}.\)

  19. The principal can compute the probability that s = 1 given r = 0 and σ = 0 using Bayes’ rule because τ is known and the state-signal joint density matrix in Table 1 is common knowledge. The fact that in equilibrium the ethical agent never submits σ = 0 does not change this conclusion. Observation of a particular signal is an objective event. Submission of a signal, be it on or off the equilibrium path, is transmission of an objective information which the principal can use to infer the likelihood of another objective event (“the state is s = 1”) according to Bayes’ rule. Note the relation to the issue of different standards used in legal practice such as preponderance of the evidence (more-likely-than-not, low β) or proof beyond reasonable doubt (high β).

  20. In other words, when the manager is honest with probability one (τ approaches one), no signal submission can induce the verdict “guilty” for the manager.

  21. Since p 11  > p 10 , it follows that p 11 /(p 11 p 10 ) > 1/2. Therefore the condition in (4) is satisfied if \(\underline{\beta} = 1/2.\) If (4) does not hold, submission of the signal σ = 1 cannot generate a probability of wrong recommendation at least as large as \(\underline{\beta}\) when r = 0 is recommended, as a result the manager will always recommend r = 0 and induce the action a = 0.

  22. It is worth noting that in this two-state, two-signal and two-action model the only variable that generates variability in the posterior β is the manager’s type t, or, the fraction of manager types τ who make the correct recommendation. Allowing for a continuum of states and signals would certainly complicate computation of β. In any case, the binary structure is a simplification of a more complete model in which, say, the agent receives a continuum of signals.

  23. Recall, if \(\underline{\beta} > p^1_1/(p^1_1 + p_0^1 ),\) no whistle can reverse the recommendation.

  24. This, of course should not be read literally to mean that organizations in which the whistleblower’s burden of proof is heavy will be filled in by ethical types. In this model the principal’s choices are between having one or zero ethical agent for implementation of the actions recommended by the manager.

  25. In the two-period case, the principal can offer either a one-period contract that covers only the first period, or a two-period contract that governs both periods, with or without the option of termination at the interim date. In contractual relationships with characteristics as given in the present model, the principal cannot benefit from committing himself to continuation with the incumbent agent and the manager, therefore prefers one-period contracts that make no reference to the second period. Keeping his option to costlessly switch to another agent and/or manager alive can only further increase the principal’s expected payoff. See Bac (1993, 1997) on optimal contract durations when performance is not contractible.

  26. I assume that the agent population is large enough so that the measure λ of ethical agents in the population of agents is not significantly affected by the firing decision at the end of period one.

  27. If \(\underline{\beta} \geq \underline{\beta}^C\) so that the principal’s expected payoff is increasing in λ, the principal would screen out standard agents from the beginning by offering w A  < 0. In this case, there is no reason to fire the agent blowing the whistle.

  28. The strategy to blow the whistle constitutes an equilibrium behavior despite the fact that it leads to dismissal. Rejecting the job and accepting it to potentially blow the whistle yield the same per-period payoff for the ethical agent.

  29. In litigation, a discriminated or dismissed employee has the burden to establish that the employer’s behavior or decision was, more likely than not, a retaliation against the employee’s whistleblowing. This is essentially similar to the burden under Title VII of the Civil Rights Act, according to which the employee has to demonstrate that the activity (whistleblowing) is protected and occurred under the knowledge of the employer, furthermore, that he suffered an unfavorable personnel action and that the circumstances “were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action” (dismissal, discrimination, etc.). Fulfillment of this condition then shifts the burden to the employer to demonstrate, by clear and convincing evidence, that he would have taken the same unfavorable personnel action in the absence of the plaintiff’s protected behavior or conduct. Because the “clear and convincing evidence” standard is higher than the burden under Title VII, the task of an employer facing a charge from an employee allegedly dismissed for whistleblowing is now considerably more difficult.

  30. The burden of proof in litigation, between a dismissed whistleblower (plaintiff) and the employer (defendant), is not to be confused with whistleblowers’ internal burden of proof, which I related above to encouragement policies.

  31. Under Section 301 of the Act, each company’s audit committee must establish the procedures for receipt and handling of complaints. Cherry (2004), however, notes that Section 310 is silent as to what types of procedures are adequate.

  32. For instance, see Newman v. Legal Services Corp., 628 F. Supp. 535 (D.D.C. 1986), Hall v. Ford, not reported in F.Supp., 1987 WL 11991 (D.D.C.,1987).

  33. As τ approaches 1, the probability of a wrong recommendation \(prob(s=1 | r=0)\) approaches zero, though \(prob(s=1 | r=0, \sigma =1)\) remains larger than \(prob(s=1 | r=0, \sigma = 0)\) for all τ ∈ (0, 1). Therefore it is impossible to find \(\beta \geq \underline {\beta}\) that satisfies (3) as τ approaches 1.

References

  • Aghion, P., & Tirole, J. (1997). Formal and real authority in organizations. Journal of Political Economy, 105, 1–29.

    Article  Google Scholar 

  • Bac, M. (1993). Opportunism and the dynamics of incomplete contracts. International Economic Review, 34, 663–683.

    Article  Google Scholar 

  • Bac, M. (1997). Bilateral relationships governed by incomplete contracts. Journal of Institutional and Theoretical Economics, 153, 320–333.

    Google Scholar 

  • Barnett, T., Cochran, D. S., & Taylor, G. S. (1993). The internal disclosure policies of private-sector employees: An initial look at their relationship to employee whistleblowing. Journal of Business Ethics, 12, 127–136.

    Article  Google Scholar 

  • Becker, G. S. (1968). Crime and punishment: An economic approach. Journal of Political Economy, 76, 169–199.

    Article  Google Scholar 

  • Becker G. S., & Stigler, G. J. (1974). Law enforcement, malfeasance and compensation of enforcers. Journal of Legal Studies, 31–18.

    Article  Google Scholar 

  • Benoit, J. P., & Dubra, J. (2004). Why do good cops defend bad cops? International Economic Review, 45, 787-809.

    Article  Google Scholar 

  • Berkowitz, P. M. (2004). New Sarbanes-Oxley whistle-blower regulations: Their impact on business. National Law Journal, 20 September 2004.

  • Bowman, J. S., & Williams, R. L. (1997). Ethics in government: From a winter of despair to a spring of hope. Public Administration Review, 57, 517–526.

    Article  Google Scholar 

  • Brewer, G. A., & Selden, S. C. (1998). Whistle blowers in the Federal Civil Service: New evidence of the public sector ethic. Journal of Public Administration Research and Theory, 8, 413–439.

    Google Scholar 

  • Cherry, M. A. (2004). Whistling in the dark? Corporate fraud, whistleblowers and the implications of the Sarbanes-Oxley Act for employment law. Washington Law Review, 79, 1029–1123.

    Google Scholar 

  • Cremer, J. (1995). Arm’s length relationships. Quarterly Journal of Economics, 110, 275–295.

    Article  Google Scholar 

  • Friebel, G., & Raith, M. (2004). Abuse of authority and hierarchical communication. The RAND Journal of Economics, 35, 224–244.

    Article  Google Scholar 

  • Glazer, M. P., & Glazer, P. E. (1986). Whistleblowing. Psychology Today, 22, 37–43.

    Google Scholar 

  • Holmstrom, B. (1979). Moral hazard and observability. Bell Journal of Economics, 10, 74–91.

    Article  Google Scholar 

  • Jos, P. H., Tompkins, M. E., & Hays, S. W. (1989). In praise of difficult people: A portrait of the committed whistleblower. Public Administration Review, 49, 552–561.

    Article  Google Scholar 

  • Lewis, D. (2002). Whistleblowing procedures at work: What are the implications for human resource practitioners? Business Ethics, 11, 202–209.

    Article  Google Scholar 

  • Muehlheusser, G., & Roider, A. (2008). Black sheep and walls of silence. Journal of Economic Behavior and Organization (forthcoming).

  • Near, J. P., & Miceli, M. P. (1985). Organizational dissidence: The case of whistleblowing. Journal of Business Ethics, 4, 1–16.

    Article  Google Scholar 

  • Near, J. P., Bacus, M. S., & Miceli, M. P. (1993). The relationship between values and practice: Organizational climates for wrongdoing. Administration and Society, 25, 204–220.

    Google Scholar 

  • Williamson, O. E. (1985). The economic institutions of capitalism. The Free Press: New York.

    Google Scholar 

Download references

Acknowledgements

I would like to thank Steven Dods, Huseyin Yildirim and the referees for useful comments. Earlier versions of this paper, circulated under the title “Why are Whistleblowers Fired?,” benefited from presentations at the Canadian Economic Association and Society of Labor Economics meetings.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Mehmet Bac.

Appendix

Appendix

1.1 Proof of Lemma 1

Consider part (ii) first. If the statement is wrong, one of the following three cases must arise when r = 0 is recommended:

  1. (a)

    The principal decides d = A for both σ = 0 and σ = 1 submissions, that is, always reverses the recommendation to r = 1. Then the ethical agent will set q(r = 0, σ) = σ and always blow the whistle (for both σ = 0 and σ = 1) which means that the hierarchy always implements a = 1. The principal can achieve this outcome without the manager, instructing the agent to implement a = 1, always.

  2. (b)

    The principal decides d = M for both σ = 0 and σ = 1 submissions. Then the manager’s optimal strategy is r(s) = 0 for all s and the hierarchy implements action a = 0 with probability one. The principal can achieve this outcome without the manager and instructing the agent to implement a = 0, always.

  3. (c)

    The principal decides d = M if σ = 1 is submitted, d = A if σ = 0 is submitted, given recommendation r = 0. Such a policy cannot be optimal because \(prob(s=1 | r=0, \sigma = 0) < prob(s=1 | r=0, \sigma = 1).\)

The only possibility left is that in equilibrium the principal decides d = M (d = A) only if σ = 0 (σ = 1) is submitted. Part (i) is straightforward: If there is an equilibrium in which all manager types make the correct recommendation, the ethical agent will set \(q(r, {\sigma}) =\emptyset\) for all r and σ and blow no whistle because the principal will decide d = M. Then, however, the manager will deviate to recommending the wrong action, which upsets the proposed equilibrium. Nor can there be an equilibrium in which all manager types make the wrong recommendation because the principal can implement such an outcome by firing the manager. Part (iii) is now obvious, because the strategy q(r = 0, σ = 0) = 0 of submitting the signal σ = 0 when r = 0 will produce the decision d = M, the consequence of which is a fine f A imposed on the whistleblower. Q.E.D.

1.2 Proof of Proposition 1

Several features of the optimal contract are transparent. First, the optimal contract must be binding the participation constraint of the type-0 manager. If this constraint is not binding the principal can increase his payoff by slightly decreasing the wage w M , which still induces acceptance with probability one without affecting the strategies. Thus, from (5),

$$w^*_M = p^1_0 \lambda f^* - prob(a=0 | r_t (s)) \cdot \underline{t} z,$$
(13)

where

$$prob(a=0 | r_t (s)) \cdot \underline{t}z = [\lambda (p_0^0 +p_1^0 (1-\tau)) + (1- \lambda )(1- (p_1^0 +p_1^1 )\tau )]\cdot \underline{t}z. $$

Second, the optimal contract always binds the ethical agent’s participation constraint, thus, expected reward payments \(\lambda (p^1_0 +(1-\tau)p^1_1)R_A\) plus the agent’s base wage w A equals λ(1 − τ)p 01 L:

$$\lambda (p^1_0 +(1-\tau)p^1_1)R_A + w_A = \lambda (1- \tau)p^0_1 L.$$
(14)

The principal can control τ (see (6)) through the penalty f M and, to keep the manager’s participation constraint satisfied, adjust the wage w M according to (13). As τ changes, the interval in (3), to which the IDC probability β must belong, also changes. Since f M affects τ directly, the optimal τ can be determined from the principal’s expected payoff stated solely in terms of τ through substitutions in (8). To this end, using (13) one obtains

$$\lambda (p^1_0 +(1-\tau)p^1_1 )f_M -\lambda p^1_0 f_M = \lambda (1-\tau)p^1_1 f_M .$$

Since f M and τ are related through (6), using this condition and simplifying, the expression above becomes

$$\lambda (p^1_0 +(1-\tau)p^1_1 )f_M -\lambda p^1_0 f_M = \tau (1-\tau)(p_1 - \lambda p^1_1 )z.$$
(15)

The expression in (15) enters the principal’s objective in (8) with a positive sign, whereas the expression in (14), with a negative sign. It will be useful to arrange the coefficient of B in (8) as a sum of two terms, one that depends on τ plus one that does not:

$$ \tau [ (1-\lambda)(1 -p_0)+\lambda (p_1 - p_1^1)] + [(1- \lambda )p_0 +\lambda (p^1_1 +p^0_0)].$$

Using the fact that p 1 + p 0 = 1, the coefficient of τ above simplifies to p 1 − λp 11 . Now, combining these terms and substitutions from (14) and (15) into (8) yields

$$\begin{array} {l}U_P = \tau(p_1 - \lambda p^1_1)B + [(1- \lambda )p_0 +\lambda (p^1_1 +p^0_0)]B\\ + \tau (1-\tau)(p_1 -\lambda p^1_1 )z + prob(a=0 | r_t (s)) \cdot \underline{t} z - \lambda (1-\tau)p^0_1 L. \end{array}$$
(16)

This expression is concave and increasing in \(\tau{\text:}\;\partial U/\partial \tau = (p_1 - \lambda p^1_1 )(B+(1- 2\tau)z - \underline tz) + \lambda p^0_1 L > 0\) for all τ ∈ [0, 1] because p 1 >  λp 1 1 and \(B > (\underline t + 1) z.\)

It follows that the principal prefers τ as large as possible, hence, that he should increase f M as much as possible. This, however, will shift the interval in (3) to the left and eventually violate the constraint \(\beta \geq \underline {\beta}.\) Recall that β must belong to the interval in (3) because, by part (ii) of Lemma 1, in any equilibrium in which the probability of an ethical type is positive the decision must be d = A if σ = 1, d = M if σ = 0, when r = 0. Given this, the principal should increase τ and decrease β accordingly until β is equal to both \(\underline{\beta}\) and the upper bound of the interval in (3). The maximal (and optimal) τ that can be induced isFootnote 33

$$ \tau^* = 1 - \frac{\underline{\beta} p^1_0} {(1- \underline {\beta})p^1_1},$$

which is positive if \(\underline {\beta} < p^1_1/(p^1_1 + p^1_0),\) as assumed in (4). The optimal value of β is then \(\beta^* = \underline {\beta}.\)

Consider now the optimal incentive schemes. The case where the principal screens out standard agents is straightforward: set w A <  0 and pick a corresponding reward R A > 0 that satisfies (7) with equality. Assume that the principal attracts both types of agents. It is easy to see that the agent’s optimal base wage must be w * A = 0. Though the principal can satisfy the participation constraints of both agent types with a wage offer w A  > 0, a reduction in w A coupled with an increase in R A that keeps both participation constraints satisfied will increase the principal’s expected payoff. A strictly positive wage gives a positive rent to the standard agent and thus cannot be optimal. The optimal reward R * A is found through the participation constraint of the ethical agent, holding with equality for w A = 0. Q.E.D.

1.3 Proof of Proposition 2

To show existence of a critical \(\underline {\beta}^C > 1/2\) such that the inequality in (10) is reversed for \(\underline {\beta} < \underline {\beta}^C,\) note first that B − z(p 1 τ*/p 11 ) is positive for all possible values of τ* because by assumption, B > z(p 1/p 11 ). Consider now the sign of (1 − τ*)p 11  − p 10 . Substituting for τ* yields

$$(1-\tau^*) p^1_1 - p^1_0 = p^1_0 \left[\frac{\underline {\beta}} {(1- \underline {\beta})}- 1\right],$$

which is positive if and only if \(\underline {\beta} > 1/2.\) That is, the first term in (10) is positive if and only if \(\underline {\beta} > 1/2.\)

Note that (1 − τ*)p 01 L and \((1-p^0 -p_1^1 \tau^* )\underline{t}z\) are decreasing in τ*, hence, increasing in \(\underline{\beta}.\) In particular, for \(\underline{\beta} = 1/2,\)

$$(1- \tau^*) p^0_1 L = \frac{p^1_0 p^0_1}{p^1_1}L,\quad {and} \quad (1-p^0 -p_1^1 \tau^* )\underline{t}z = (1-p^0 - (p_1^1 -p_0^1 )) \underline{t}z,$$

which implies that the expression in (10) is negative for \(\underline {\beta} =1/2,\) and by continuity, at the right neighborhood of \(\underline {\beta} = 1/2\) as well. As \(\underline {\beta}\) is further increased above 1/2, the first term in (10) is positive and increasing, while the second and third terms are negative and decreasing. Then, either a critical level of \(\underline {\beta}\) exists such that the expression in (10) becomes zero or the upper admissible bound for \(\underline {\beta},\) namely, p 1 1/(p 1 1p 1 0) < 1, is reached. The value of \(\underline {\beta}^C\) is defined as the maximum of the two values of \(\underline {\beta}.\) Q.E.D.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Bac, M. An economic rationale for firing whistleblowers. Eur J Law Econ 27, 233–256 (2009). https://doi.org/10.1007/s10657-008-9091-5

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10657-008-9091-5

Keywords

JEL Classification

Navigation