On March 8, 2017, a divided panel of the Ninth Circuit issued an opinion in Somers v. Digital Realty Trust Inc. that further widened a circuit split on the issue of whether the anti-retaliation provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act apply to whistleblowers who claim retaliation after reporting internally or instead only to those who report information to the SEC. Following the Second Circuit’s 2015 decision in Berman v. Neo@Ogilvy LLC, the Ninth Circuit panel held that Dodd-Frank protections apply to internal whistleblowers. By contrast, the Fifth Circuit considered this issue in its 2013 decision in Asadi v. G.E. Energy (USA), LLC and found that the Dodd-Frank anti-retaliation provisions unambiguously protect only those whistleblowers who report directly to the SEC. READ MORE
The Organisation for Economic Cooperation and Development (“OECD”), an international organization whose goal is to promote policies that will improve the economic and social well-being of people across the world, recently published a report entitled “Committing to Effective Whistleblower Protection” (the “Report”). A booklet containing the highlights of the report is available here. In the Report, the OECD reviews whistleblower laws and practices within its 34 member countries, making it a useful resource for multinational companies doing business around the world.
Following months of waiting the UK Government has finally published its draft regulations on the new “gender pay gap reporting” requirements in the UK. On publication of the draft regulations, the UK Government has asked one final consultation question: “What, if any, modifications should be made to these draft regulations?” – And so it would appear that the draft regulations are nearing but possibly not quite in final form, pending any pertinent responses received.
The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998. The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades. The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention.” The 30-day input period on the guidance ends on February 24, 2016.
With Governor Jerry Brown’s signature, California officially amended its equal pay legislation through the California Fair Pay Act (the Act) to include more employee-friendly provisions. The Act, which now creates the nation’s strongest equal pay protections, seeks to close the pay gap in California. The Act may serve as a model for legislation in other states and supporters are even hopeful the Act’s passage may finally push Congress to pass the Paycheck Fairness Act, which has been introduced in Congress every year since 1994 and upon which California’s legislation was based.
On August 4, 2015 the Securities and Exchange Commission issued interpretive guidance elaborating its view that the anti-retaliation provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act apply equally to tipsters who claim retaliation after reporting internally, as well as those who are retaliated against after reporting information to the SEC. The guidance reflects that there is a split among federal courts over whether Dodd-Frank’s whistleblower retaliation provisions apply to internal as well as external reporting, and recognizes that the only circuit court to decide the issue to date, the Fifth Circuit, has taken a contrary position to that of the Commission in Rule 21F, the regulation the SEC adopted to implement the whistleblower legislation, holding that internal reports are not protected by Dodd-Frank. Whether internal reports qualify for Dodd-Frank coverage has important implications because, among other things, Dodd Frank provides enhanced recoveries (including two times back pay) and longer time frames (six years) for bringing a retaliation claim than would be available under the anti-retaliation provisions in the Sarbanes-Oxley Act of 2002.