Anti-Retaliation Protections for Whistleblowers

Our whistleblower attorneys represent individuals when they suffer retaliation at the hands of their employer because of internal and external tips concerning misconduct. There are various local, state, and federal laws, including Dodd-Frank and the False Claims Act, protecting private and government whistleblowers. Unfortunately, these protections do not ensure that all individuals are covered.

Federal Laws Concerning Whistleblower Retaliation 

False Claims Act

This act offers protection from retaliation to whistleblowers bringing qui tam lawsuits under it. Section 3730(h) prohibits adverse changes to the terms and conditions of employment as a result of lawful whistleblowing activities to stop violations of the False Claims Act. If an employee is discriminated against as a result of their whistleblower status, they are entitled to bring a cause of action in federal district court for double back pay, interest, and compensation for special damages such as litigation costs and attorneys’ fees. The anti-retaliation provisions of the False Claims Act are available to whistleblowers within three years of the date of retaliation. 

CTFC

After submitting Form TCR to the CFTC, an individual is considered a whistleblower and protected by the anti-retaliation provisions inserted into the Commodity Exchange Act by the Dodd-Frank Act. It provides a federal cause of action to whistleblowers who are discharged, demoted, suspended, harassed or otherwise discriminated against by their employer because of any lawful act done in providing information to the CFTC or assisting with the investigations and enforcement actions that result. The individual must bring a lawsuit in an appropriate district court of the United States within two years of the retaliatory conduct. If the whistleblower is successful in the lawsuit, they are entitled to reinstatement, back pay plus interest, and compensation for special damages including litigation costs, expert witness fees and attorney’s fees.

SEC

The SEC has specific protection against retaliation (discharge, demotion, suspension, harassment, or any other discrimination against whistleblowers) by employers. Individuals are allowed to bring a private suit against their employer, and if they prevail, are entitled to reinstatement, back pay, litigation costs, expert witness fees, and attorney fees. These protections were passed by Congress as part of the Dodd-Frank Act. The SEC rules interpret the law to protect individuals who have only filed an internal report to the company. They do not require a report to the SEC. However, some courts have invalidated the internal reporting protections of the SEC. The SEC has also reserved the right to bring an enforcement action on behalf of whistleblowers who have been retaliated against by their employer. The first exercise of this power happened in 2014 when one of the allegations made by the securities regulator against a hedge fund settling the SEC’s charges involved retaliation.

Sarbanes-Oxley Act

The Sarbanes-Oxley Act (SOX), also known as the “Public Company Accounting Reform and Investor Protection Act” and “Corporate and Auditing Accountability, Responsibility, and Transparency Act,” was passed by Congress following the Enron and other accounting scandals in the early 2000s. It protects employees of publicly traded companies from retaliation. It also covers employees of contractors and subcontractors according to the Supreme Court decision in Lawson v. FMR.

IRS Whistleblower Program

The law authorizing the IRS whistleblower program in 2006 did not provide for a federal cause of action to protect whistleblowers from retaliation by their employer. Individuals who submit tips to the IRS are only protected if they are covered by another law. There have been some efforts to add them to the law but these efforts have so far been unsuccessful. Tax whistleblowers are primarily protected by the assurance of confidentiality made by the IRS.

Other Federal Laws

Various other federal laws contain provisions protecting individuals who report violations of their terms to the U.S. Government. These laws are typically administered by OSHA. The U.S. Government also offers protection to U.S. Government employees in some instances through various other federal laws. Some of these laws have short statute of limitations – as little as 30 days – so contact us as soon as possible.

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