United States: Don’t Tread On Whistleblowers: Mitigating And Managing Retaliation Risks

As the Securities and Exchange Commission's Whistleblower Program gains traction, reporting of compliance concerns is likely to increase. That Program, which has attracted a great deal of attention, authorizes payment of bounties to qualified whistleblowers who report ''original information'' regarding possible violations of the federal securities laws to the Securities and Exchange Commission (''SEC'').¹ We have written previously on the variety of factors that are likely to increase the number of whistleblower complaints over the next few years.² Less attention has been focused on the broad protections against retaliation for ''whistleblowers'' contained in Dodd-Frank Wall Street Reform and Consumer Protection Act. Data shows that retaliation claims are on the rise across the U.S.: the Equal Employment Opportunity Commission (''EEOC'') reports that retaliation charges filed with the EEOC under all statutes which it enforces amounted to 38.1 percent of the total charges filed for FY 2012,³ and the Occupational Health and Safety Administration (''OSHA''), which receives and investigates whistleblower retaliation claims under more than 20 federal laws, including the Sarbanes-Oxley Act (''SOX''), reports that the total number of whistleblower retaliation claims increased in FY 2012 as did SOX retaliation claims.⁴

Footnotes

^{1 15 U.S.C. § 78u-6(a)(6). Dodd-Frank Wall Street Reform and Consumer Protection Act also authorizes bounty payments to qualifying whistleblowers who provide original information relating to a possible violation of the federal commodities laws (including any rules or regulations) that has occurred, is ongoing, or is about to occur.}

^{2 See William McLucas, Laura Wertheimer & Arian June, Year Three of the SEC Whistleblower Program: Will it Turbocharge SEC Enforcement, 45 BLOOMBERG BNA SEC. REG. & L. REP. 890 (May 13, 2013).}

^{3 U.S. EQUAL OPPORTUNITY EMP'T COMM'N, CHARGE STATISTICS FY 1997 THROUGH FY 2012, available at http://eeoc.gov/eeoc/ statistics/enforcement/charges.cfm.}

^{4 OCCUPATIONAL SAFETY & HEALTH ADMIN., CASES RECEIVED: FY2005 – FY2012, available at http://www.whistleblowers.gov/ wb_data_FY05-12.pdf.}

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Originally published by BNA Bloomberg, Securities Regulation & Law Report, 01/13/2014.

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