TT&S Weekly (10/15/18)
Topic of the Week Corporate Whistleblowing: What Actions by a Whistleblower Does the Law Protect
You must prove:
- protected activity;
- an adverse employment action; and
- the protected activity caused the adverse action.
Protected activity is:
- to provide information...
- regarding conduct that violates certain laws and regulations...
- when the information is provided to one of several agencies or government bodies.
What must be proved to win a corporate whistleblower case for retaliation?
Before an employee can win a case, that employee must be able to show the judge that there was
- protected activity;
- an adverse employment action; and
- the protected activity caused the adverse action.
The law on this issue is relatively broad but doesn't protect all types of action that a whistleblower might take. In order to know whether the law protects you from retaliation it is important to know what sort of actions are protected.
What conduct is considered to be "protected activity"?
"Protected activity" describes the actions an employee can take, and be protected by the law from retaliation. The Department of Labor and the courts interpret "protected activity" broadly.
For example, calling the SEC is protected activity. So, if the boss gets mad and fires you for calling the SEC, you can make a complaint against that unlawful retaliation. Sarbanes-Oxley also protects employees who report violations to the employer. Dodd-Frank extends that employee protection to prevent retaliation not just against the employee, but also against a contractor, agent or associated others. Dodd-Frank only protects against retaliation if the violation is reported to the SEC. Internal reports alone are not protected by Dodd-Frank, but may be covered under Sarbanes-Oxley.
Sarbanes-Oxley describes the scope of protected activity as:
to provide information, cause information to be provided, or otherwise assist in an investigation
regarding any conduct which the employee reasonably believes is a violation of the Sarbanes-Oxley law itself, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders,
when the information or assistance is provided to or the investigation is conducted by: a Federal regulatory or law enforcement agency; any Member of Congress or any committee of Congress; a person with supervisory authority over the employee; or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct
Sarbanes-Oxley also protects :
workers who have commenced, or are about to commence, a proceeding for enforcement of any requirement imposed under the law.
Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Similarly, filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law can be protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to accounting, quality control or enforcement work, doing that work too well is also protected.
However, if the employee has concealed the protected activity from the employer, then an issue might arise about whether the employer knew about it before imposing the retaliatory action. For this reason, some whistleblowers will notify the employer directly, through a means that establishes the date on which the employer received the notice. Certified mail, email, and faxes can all provide evidence of the date of receipt. Sometimes, the employer's investigation or interrogation of an employee can reveal employer knowledge of the protected activity.
The employee is not required to prove the underlying violation. The employee needs only a "reasonable basis" to believe that a violation might have occurred. Under Sarbanes-Oxley, internal disclosures (complaints made to a supervisor) are protected, but under the Dodd-Frank Act, disclosures are limited to disclosures made to the SEC.
Thought of the Week
"Whisper networks are a double-edged sword: the same secrecy that protects victims and whistleblowers can shield perpetrators as well."
–Sarah Jeong, The Verge
Weekly Comic by Jerry King
Blog of the Week
Top Five News Headlines
List of the Week
from Workplace Fairness
Top Searches for Whistleblower Laws This Week:
- Federal Employee Whistleblowers: Whistleblower Protection Act
- Trucking Whistleblowers: Surface Transportation Assistance Act
- Corporate Whistleblowers: Sarbanes-Oxley/Dodd-Frank
- Environmental Whistleblowers: Occupational Safety and Health Act