Protecting Corporate Whistleblowers

A corporate whistleblower faces a very real risk of retaliation by her employer, commonly in the form of termination. Certain provisions of the Sarbanes-Oxley Act (SOX) provide protections for whistleblowers, and new whistleblower protections could potentially come through the proposed financial reform bill.

18 U.S.C. sec. 1514A of SOX protects corporate whistleblowers by providing them with the remedy of a civil action in the event of retaliation by their employer.  Publicly traded companies, as well as their contractors, subcontractors, and agents, are prohibited from retaliating against a whistleblower who participates in an investigation or participates in an action stemming from violations of Federal law relating to fraud against shareholders.

If a whistleblower does suffer some sort of retaliation, she has two options depending on the amount of time that has elapsed. She could file a complaint with the Secretary of Labor, or, in the event that the Secretary of Labor has not issued a decision within 180 days of the filing of the complaint and the whistleblower has not done anything in bad faith to cause the delay, the whistleblower can go ahead and file a lawsuit in federal district court. As a side note, there is a special loophole created for whistleblower plaintiffs here. Normally, in order to get into federal district court the amount in controversy must be $75,000 or more. For whistleblowers alleging discrimination, this requirement is waived.

The proposed financial reform legislation, which may be headed to the Senate floor this week, could significantly expand whistleblower protections. Under both the House version of the bill as well as that proposed by Senator Chris Dodd, the SEC would be authorized to reward whistleblowers for any insider trading violations (not just those related to securities, as the law currently stands). In addition, the whistleblower’s share of the SEC sanction would be increased to 30% from its current 10%. This is a significant jump, putting it in line with the maximum recoveries available to qui tam relators and IRS whistleblowers.

Blowing the whistle is by no means without risk. The whistleblower should take some comfort, however, in the fact that there are several protections available, and stronger protections likely are on the way. Recent events in the financial world, such as the Goldman Sachs short selling debacle, are sure to provide an impetus to Congress to reinforce whistleblower protections in this area.

This article was sponsored by The Qui Tam Team, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.