Retaliation

Regulators Offer Insights Into SEC, CFTC, and OSHA Whistleblower Program’s Trends and Priorities

On July 13, 2020, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in the Coronavirus Era 2020, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies’ whistleblower program’s current progress, challenges, and priorities. READ MORE

New York City Broadens Employee Anti-Retaliation Protections Under NYCHRL

Not to be outdone by the New York State legislature’s flurry of eleventh-hour lawmaking (which we previously reported on here and here), the New York City Council recently passed an employment bill pending since April of 2018. The new law, Int. No. 0799-2018, amends and broadens workplace anti-retaliation protections under § 8-107(7)(v) of the New York City Human Rights Law (“NYCHRL”) by including that it is illegal to retaliate against an employee or applicant who requests a reasonable accommodation under the law. READ MORE

Phase Two of New York Legislative Response to #MeToo: State Passes Comprehensive Anti-Discrimination Expansion Bill

Major changes are in store for New York employers under a new bill passed in the waning hours of the 2019 legislative session. As part of an ongoing, multi-year effort to address sexual harassment and other discrimination and harassment issues, the New York legislature on June 19, 2019 passed Assembly Bill 8421 (“AB 8421”), a compendium bill that introduces new and refined employee protections against harassment, retaliation, and discrimination in the workplace. AB 8421 amends the New York State Human Rights Law (“NYSHRL”) to usher in new affirmative protections and procedural mandates that will significantly affect employer liability under state law. Building on protections previously enacted under the 2018 state budget, AB 8421 will expand prohibitions on nondisclosure agreements and arbitration agreements to categories of discrimination and harassment beyond sexual harassment. Key elements of AB 8421 are described below. READ MORE

Brett Kavanaugh’s Supreme Court Job Interview: An Employer’s Perspective

The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.

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Court Rules Dodd-Frank Whistleblower Retaliation Claims Are Arbitrable

We have previously written about how Dodd-Frank retaliation cases are a mixed bag for employers and about the Supreme Court’s expansion of Sarbanes-Oxley (“SOX”) Whistleblower protections.  A new decision from the Wisconsin District Court is another mixed win for employers who want to enforce arbitration agreements in Dodd-Frank and SOX retaliation cases.  In a case of first impression in the Seventh Circuit, Wussow v. Bruker Corporation., No. 16-cv-444-wmc, 2017 WL 2805016 (W.D. Wis. June 25, 2017), the district court held that while arbitration of SOX whistleblower retaliation claims cannot be compelled, a similar cause of action for whistleblower retaliation under Dodd-Frank can be. READ MORE

Will the Whistle Be Silenced? Dismantling Dodd-Frank

Silver school PE sports whistle on white background Will the Whistle be Silenced? Dismantling Dodd-Frank

When Donald Trump was elected President of the United States in November, he vowed to “dismantle” the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). In its place, Trump promised to replace the law “with new policies to encourage economic growth and job creation.”  Now a bill known as the Financial CHOICE Act may initiate the process to do just that. But at least with respect to Dodd-Frank’s whistleblower provisions, the Financial CHOICE Act would leave largely intact the current bounty programs that have already awarded tipsters over $150 million in the U.S. and abroad.

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Whistleblower’s Ability to Breach Confidentiality Agreement – Do the Ends Justify the Means?

It is common for employers to require employees whose job duties require access to confidential, sensitive, and/or proprietary information to sign confidentiality and/or non-disclosure agreements as a condition of employment. However, at least in limited circumstances involving whistleblowers, employers are finding that they may not be permitted to enforce such agreements under all circumstances.  READ MORE

Cybersecurity Whistleblowing Is Murkier Than You May Think

Employment Partner & Co-chair of Orrick’s Whistleblowing Task Force Renee Phillips, and Cybersecurity & Data Privacy Associate Shea Leitch, recently authored an article in Corporate Counsel magazine titled “Cybersecurity Whistleblowing Is Murkier Than You May Think.”

The article covers the emerging issue of cybersecurity whistleblowing and discusses scenarios in which cybersecurity whistleblowers can step forward. In addition, the authors touch on best practices for companies when addressing internal complaints and how to mitigate potential scrutiny from regulatory agencies. To read the full article, please click here.

Bounty-ful Pay Day and Former SEC Whistleblower Chief’s Move To Plaintiff’s Firm May Lead to Whistleblower Claim Increase

Two recent events may spur a rise in the number of high quality whistleblower tips filed with the SEC.  First, on August 30, 2016, the SEC announced that it had awarded a $22.4 million bounty to a former Monsanto financial executive, whose report of alleged accounting fraud led to the company’s $80 million settlement with the SEC in February.  This recent award brings the total amount paid out to whistleblowers by the SEC since the inception of the bounty program in 2011 up to $107 million, more than half of which has been paid out in 2016 alone.  This most recent award follows a string of seven and eight-figure awards in 2016, most notably topping a $17 million bounty in June 2016, and is second in size only to a September 2014 award of $30 million.  The $22.4 million award represents approximately 28% of Monsanto’s $80 million payment, just shy of the 30% award cap established for recoveries exceeding $1 million.

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Court-Sanctioned Employee Theft? Self-Help Discovery May Be Protected Activity In Discrimination Cases

Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that self-help discovery “may in certain circumstances constitute protected activity” under the state anti-retaliation statute, provided that, “the employee’s actions are reasonable in the totality of the circumstances.”

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