Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, state legislatures across the country have accelerated their discussion of new laws either restricting or further protecting access to abortions. A state senate bill in South Carolina, S. 1373 currently pending in the Senate Committee on Medical Affairs, would not only ban almost all abortions in that state, but would also afford novel whistleblower protections. Specifically, S. 1373 imposes criminal penalties, punishable by imprisonment for ten years, for persons who “take any action to impede a whistleblower from communicating about a violation of this article with the Attorney General, a solicitor, or any other person authorized to bring an action in violation of this article.”
The legislation also provides an extremely broad definition of what constitutes “actions impeding a whistleblower.” In addition to prohibiting “discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment,” S. 1373 criminalizes “enforcing, or threatening to enforce, a confidentiality agreement or a pre-dispute arbitration agreement with respect to [whistleblower] communications.” The legislation provides no guidance regarding whether merely promulgating pre-dispute arbitration agreements covering whistleblower claims would constitute threatening to enforce a pre-dispute arbitration agreement.
Employers both inside and outside South Carolina should follow this legislation with caution. In the wake of Dobbs, state legislators in both red and blue states have engaged in a pattern of one-upmanship with respect to stronger protections or stricter prohibitions on abortions. We can expect other states to emulate South Carolina by including strong whistleblower protections, including criminal penalties, in their own laws regulating or prohibiting abortions.
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