Growing whistleblower activity calls for close employer attention to retaliation issues

The increasing number of whistleblowers and whistleblower retaliation claims and the evolving multi-faceted nature of anti-retaliation law require employers to take enhanced care when contemplating adverse action against an employee who may qualify for whistleblower status.

With the Dodd-Frank whistleblower bounty programme maturing, the number of whistleblowers and whistleblower retaliation claims is bound to increase.

The Securities and Exchange Commission (SEC) reported receiving approximately 3,000 tips in its last fiscal year, and recent cases and pronouncements by the SEC highlight the need to carefully assess potential retaliation issues before taking employment action against a self-styled whistleblower.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC may pay rewards to individuals who provide the SEC with information about a possible violation of the federal securities laws that “has occurred, is ongoing, or is about to occur” at companies required to report to the SEC. The SEC may provide monetary compensation to individuals who voluntarily provide original information (i.e., previously unknown to the SEC) leading to a successful SEC enforcement action resulting in sanctions exceeding US$1 million. The individuals may receive between 10 and 30 percent of the amount collected in the SEC action or a related action brought by the US Department of Justice, regulatory agencies (such as the Federal Deposit Insurance Corporation), self-regulatory organizations (such as FINRA) and state attorneys general in criminal cases…

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