Employment Law

How Much is Too Much? Whistleblower Bar Challenges the SEC’s Recent Whistleblower Program Amendments

On January 13, 2021, prominent whistleblower attorney and a principal architect of the Dodd-Frank Act whistleblower program, Jordan A. Thomas, filed a complaint against the U.S. Securities and Exchange Commission (“SEC” or “Commission”) seeking a declaratory judgment that certain provisions of the SEC’s recent whistleblower program amendments are invalid and cannot be enforced.  Specifically, the complaint challenges the SEC’s “clarification” of its authority to limit the size and number of certain whistleblower awards.

Under Dodd-Frank, the Commission pays a monetary award to a whistleblower that provides information to the SEC that leads to an enforcement action in an amount equal to but not less than 10% and not more than 30% of the monetary sanctions imposed by the SEC. Under Rule 21-F6, the agency calculates whistleblower awards in that 10-30% range by assigning an award percentage based on an array of positive and negative factors. The SEC then issues an award by multiplying the award percentage by the total monetary sanctions that the SEC collected.

Under the whistleblower program, awards in a single enforcement action as high as $114 million have been paid.  Thomas states that his clients have received some of the largest whistleblower awards in history, with three of his clients’ cases involving monetary sanctions in excess of $100 million.

The SEC voiced concerns in 2018 that excessively large awards could deplete the Investor Protection Fund. As a result, the SEC originally proposed a revised Rule 21F-6 in 2018 that would have expressly provided the Commission with the ability to make downward adjustments in connection with large awards where the monetary sanctions equaled or exceeded $100 million as long as the award payout did not fall below $30 million. However, the SEC ultimately scrapped the proposed rule and instead clarified in the new rules that it has always had the authority and discretion to consider the total dollar payout when applying the award criteria and adjust downward for large awards as reasonably necessary.

In addition, under the prior Rule 21F-3, the SEC would pay awards based on amounts collected in “related actions” and defined “related action” as a “judicial or administrative action that is brought by [specified agencies or self-regulatory organizations], and . . . based on the same original information that the whistleblower voluntarily provided to the Commission.” The SEC’s recent amendments revised Rule 21F-3 to award information provided in a “related action” “only if the Commission finds . . . that its whistleblower program has the more direct or relevant connection to the action.” Further, the Final Rule 21F-3 prevents whistleblowers from receiving an award if they have already been granted an award by another agency or if they have been denied an award by another agency’s whistleblower program.

According to Mr. Thomas’s complaint, the previous rules encouraged whistleblowers to come forward by guaranteeing that those individuals who acted properly would be awarded accordingly and would not have their awards unfairly and arbitrarily diminished.  In his complaint, he argues that this “clarification” to Rule 21F-6 is unlawful under the Administrative Procedure Act (“APA”) for at least five reasons: (1) the Final Rule was not a “logical outgrowth” of the proposed rule; (2) the SEC enacted the rule without acknowledging that it was changing its position; (3) the SEC failed to weigh the costs and benefits of the Final Rule; (4) the SEC adopted the rule without providing a reasoned explanation and despite the harms it will cause the whistleblower program; and (5) the SEC had no statutory authority to enact the rule. Furthermore, the complaint alleges the amendments to Rule 21F-3 are unlawful under the APA because (1) the SEC had no statutory authority to enact the changes and (2) the SEC adopted the rule without providing a reasoned explanation and despite the harms it will cause the whistleblower program.

As the complaint asserts, “[T]he potential for large monetary awards is the primary motivation for individuals to blow the whistle to law enforcement and regulatory authorities” and the challenged rule amendments “turn[] the Commission into a kind of casino that aggressively courts high-rollers with the promise of large jackpots but reserves the right to lower their winnings if those winnings get ‘too large.’” Further, the complaint surmises that would-be whistleblowers may weigh the costs and benefits of the revised whistleblower program and choose not to report possible securities violations to the SEC if they are worried their awards may be adjusted downwards or denied outright under the related action rules, ultimately reducing the number of individuals who report.

Certainly for the whistleblower bar, significant contingent legal fees are at stake.  The complaint notes that Thomas currently has nine whistleblower clients awaiting a final determination of entitlement to an award from the SEC, and that given the monetary sanctions collected, his clients collectively are eligible for awards of more than $300 million.  On each of these potential awards, Thomas’ firm will receive a contingency fee, and Plaintiff Thomas will receive incentive compensation for recovering the award on behalf of his client.

This is the first action attacking the Final Rule and no doubt will be met with a vigorous defense by the SEC.  We will monitor the progress of this action and questions of standing (i.e., whether lawyers that represent whistleblowers have standing to challenge this Final Rule) and whether the Final Rule passes muster under the APA.

Furloughs and Redundancies – COVID Creative Compensation: Pandemic Pay and Equity Awards Globally

As the COVID-19 pandemic continues to financially impact companies worldwide, employers have been working to implement creative compensation strategies to mitigate the financial impact on their workforce, continue to incentivize employees and reward on-site essential workers. While cash is king, equity awards have long been a key component of an overall compensation and benefits strategy for many companies, from small to large, private and public. In difficult economic times such as these, granting equity awards can help companies save cash while filling a compensation gap created by salary reductions, unpaid furloughs or decreased benefits. Equity awards could also soften the blow to employees losing their jobs due to layoffs and redundancies resulting from an employer’s Coronavirus-related financial losses and cost-cutting measures. READ MORE

The CDC Provides Guidance: Antibody Testing Cannot Be Used as a Return to Work Passport

On May 26, 2020, the Center for Disease Control and Prevention (“CDC”) released its anxiously awaited Interim Guidelines for COVID-19 Antibody Testing (the “Guidelines”). As set forth in further detail below, the Guidelines make clear that COVID-19 antibody testing should not be used to make decisions about returning employees to the workplace.

While the Guidelines detail some encouraging data developed from early studies on antibody testing, several concerns remain. On the encouraging side, the CDC states in the Guidelines that “nearly all immune competent individuals” will develop an immune response following infection with COVID-19 and recurrence of COVID-19 illness “appears to be very uncommon,” suggesting that COVID-19 antibodies may confer at least some short-term immunity. Consistent with this observation, the Guidelines further note that in experiments involving primates, infection and subsequent development of antibodies resulted in protection from reinfection. Additionally, the Guidelines note that antibody development in humans correlates with a marked decrease in viral load in the respiratory tract. According to the CDC, taken together, these observations suggest that the presence of antibodies may decrease a person’s infectiousness and offer some level of protection from reinfection. However, the Guidelines make clear that definitive data are lacking and it remains uncertain whether individuals with antibodies are protected against reinfection with COVID-19, and if so, the duration of that protection and what concentration of antibodies is needed to confer protection.

In addition to these issues, the CDC raises several other concerns in the Guidelines regarding antibody testing. The Guidelines note that some antibody tests can lead to false positive results, when they react with the presence of antibodies to other coronaviruses like the common cold. Moreover, the CDC cautions that certain individuals may not develop detectable antibodies even after infection while others’ levels could wane over time to be undetectable. The timing of antibody tests can affect the result as well; as the CDC notes, the most useful antibodies for assessing antibody response are not present early in infection, and only become detectable 1-3 weeks after symptom onset. Thus, antibody test results may not definitively indicate the presence or absence of current or previous COVID-19 infection.

In light of the continuing uncertainty regarding these issues, the CDC affirmatively states that COVID-19 antibody testing results “should not be used to make decisions about returning persons to the workplace.” The CDC specifically notes that although certain testing can have “high positive predictive value” indicating at least some degree of immunity, “until the durability and duration of immunity is established, it cannot be assumed that individuals with truly positive antibody test results are protected from future infection.” In addition to stating that employers should not use antibody testing to determine eligibility to return to the workplace, the CDC also recommends against using antibody testing to make decisions about admitting individuals to other congregate settings, such as schools, dormitories, or correctional facilities.

Finally, the CDC states that its Guidelines do not affect existing guidance from public health authorities and other governmental agencies on maintaining social distancing and using PPE in the workplace. The CDC notes that healthcare workers and first responders should continue to use PPE even if they test positive for COVID-19 antibodies. Further, while those who test positive for antibodies and do not have a recent history of “a COVID-19 compatible illness” have a low likelihood of active infection, they should still follow general recommendations to prevent the spread of infection.

While this area is rapidly evolving, employers now have affirmative guidance from the CDC that antibody testing should not be used to make decisions about bringing employees back to work. Since the EEOC has largely deferred to the CDC on this issue, employers who condition an employee’s return to work on a positive test for antibodies may be subject to claims by both the individual and the EEOC.

COVID-19 UK: Employment – Holiday in the time of COVID-19 – Update

On 13 May 2020, the UK government published guidance giving employers much needed clarity on how holiday entitlement and pay operate during the Coronavirus pandemic. It considers both those who continue to work and those who have been placed on furlough under the Coronavirus Job Retention Scheme.

When the government issued travel advice against all non-essential travel back in mid-March, perhaps we might have been forgiven for thinking that summer plans would be unaffected. However, it is becoming clear that such plans will also have to be put on hold and so employees may be considering cancelling their holiday bookings. READ MORE

Employers as Contact Tracers: the Employment and Privacy Implications of Returning to Work

Of the many new terms that we have learned as part of the current pandemic, ‘contact tracing’ is one that seems to offer some light at the end of the tunnel. READ MORE

California Mandates Supplemental Paid Sick Leave for Food Sector Workers

Earlier this month, California Governor Gavin Newsom signed Executive Order N-51-20, mandating that certain “hiring entities” provide supplemental paid sick leave for food sector workers. The executive order (EO) acknowledges that workers who help grow and provide food, work in food facilities and deliver food are essential critical infrastructure workers who continue to work outside their homes during the COVID-19 pandemic. In an effort to prevent food sector workers from having to go to work when they are sick, which increases health and safety risks, the EO mandates supplemental paid sick leave for certain COVID-19-related reasons. Here’s what hiring entities need to know about the EO.

READ MORE

San Francisco Issues Implementation Guidance on New Paid Leave Ordinance

As we reported in our previous blog post, the city of San Francisco recently enacted the Public Health Emergency Leave Ordinance (“Ordinance”) which requires certain employers to provide employees with paid leave for specified reasons related to COVID-19.  This week, the San Francisco Office of Labor Standards Enforcement issued Implementation Guidance (“Guidance”) regarding the new Ordinance.  The Guidance sheds light on important issues such as the scope of the Ordinance, the amount of leave available under the Ordinance, how to calculate rate of pay, and notice requirements under the Ordinance.

READ MORE

COVID-19 Workforce Decision Making: Don’t Forget Your Foreign National Population

Given the current pandemic, companies are tackling an array of business-critical decisions ranging from workplace safety measures to remote working parameters to pay cuts, furloughs and reductions in force. In this mass of competing priorities, employers of foreign national employees should be careful not to overlook any unique impact that their decision making can have on their nonimmigrant employee population and corresponding compliance requirements that may be triggered. The analysis and impact will be highly contingent upon what type of work authorization and nonimmigrant status the employees are working pursuant to (for example: H-1B, O-1, L-1, TN or F-1 OPT EAD holder), and what the corresponding parameters of their status are. READ MORE

New Jersey Delays Expansive Amendments to State’s WARN Act and Excludes COVID-19 Layoffs from Coverage

Last week, New Jersey Governor Phil Murphy signed into law an amendment to the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”) that delays earlier amendments that would have taken effect in July of this year, and excludes COVID-19 related layoffs from the requirements of the act. READ MORE

A California Court of Appeal Tests the Limit Of “Unlimited” Vacation Policies

“Unlimited” vacation policies have become incredibly popular throughout California, particularly in the tech industry, as a means of offering greater flexibility to employees.  Under typical unlimited vacation policies, employees can take as much vacation as they like, subject to their manager’s approval.  Because employees do not accrue vacation under these policies, there is presumably no obligation for an employer to pay employees for any unused vacation upon their departure from the company, as required by Labor Code section 227.3. READ MORE