In recent years financial corruption and crises have led to more regulation of corporations and the financial industry. Sarbanes-Oxley and Dodd-Frank impose various financial reporting obligations on publicly traded companies. These Acts also protect, and even reward, whistleblowers (employees who report their employers’ violations of the law). Employees often fail to report the wrongdoing of their employers because they fear retaliation for whistleblowing. These laws --Sarbanes-Oxley, Dodd-Frank, -- and many others -- have anti-retaliation provisions to encourage whistleblowing with respect to corporate and financial laws. Read below for more information about corporate whistleblower and retaliation protections.
- What is the law that protects Dodd-Frank whistleblowers?
- Who is protected by the Dodd Frank federal whistleblower laws?
- What must be proved to win a case?
- What conduct is considered to be "protected activity"?
- Can an employee go too far: is some conduct not protected activity?
- What if the employer makes a mistake and retaliates against someone who did not engage in protected activity?
- What is an adverse employment action?
- How do I prove that the protected activity caused the adverse action?
- Does the employee have to show that the employer knew about the whistleblower’s report to the SEC?
- How do I file a complaint?
- When must the complaint be filed?
- What happens after I file the complaint?
- What are the remedies for retaliation available to me?
- Should I get a lawyer?
- Where can I get more information?
1. What is the law that protects Dodd-Frank whistleblowers?
In July 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") was enacted to restore responsibility and accountability in our financial system. It provides several opportunities for corporate whistleblowers. The act created an award program through the Securities Exchange Commission (SEC) which provides rewards up to 30% and not less than 10% of funds recovered for information provided by whistleblowers. The SEC created a whistleblower program which enables the SEC to pay an award to whistleblowers whom voluntarily provide original information about violations of federal security laws in writing, and which lead to successful actions resulting in monetary sanctions over $1 million. To avoid losing an opportunity for a reward, you should consult an experienced whistleblower attorney before you blow the whistle.
The best source of information about what a company is actually doing or not doing is often its own employees, Dodd-Frank ensures that an employee can provide such information without losing his job or otherwise suffering economically from retribution from the employer. Both laws protect employees who call legal authorities, refuse to follow illegal orders, object to supervisors about violations and associate with those who blow the whistle. Dodd-Frank prohibits retaliation against any individual who provides information to the SEC relating to any regulation within the SEC's jurisdiction as well as anyone who participates in an investigation around such matters. These laws are meant to protect employees who expose corporate fraud including: insider trading, money laundering, accounting fraud, broker-dealer violations and any violation of the Foreign Corrupt Practices Act. Dodd-Frank also permits civil causes of action in wrongful termination, suspension, harassment or other discrimination because the whistleblower engages in protected activity of reporting information to the SEC.
When used, these laws have been effective in protecting employees who expose corporate fraud.
Congress has used similar procedures to protect truck drivers, nuclear plant employees and airline workers. Workers in these industries who take a stand for the law and suffer retaliation should consider whether to file a complaint with the Occupational Safety and Health Administration (OSHA).
2. Who is protected by the Dodd Frank federal whistleblower laws?
Dodd-Frank protects employees in any company that deals with or is a part of the financial services industry who are retaliated against for disclosing information concerning fraudulent or unlawful conduct relating to a consumer financial product or service. The financial services industry is defined to includes organizations that extend credit, service or broker loans, organizations that provide financial advising services and organizations that provide credit counseling or consumer reporting information. Sarbanes-Oxley also protects many Dodd-Frank whistleblowers.
3. What must be proved to win a case?
Before an employee can win a case, that employee must be able to show the judge that there was
- protected activity
- an adverse employment action; and
- the protected activity caused the adverse action.
4. What conduct is considered to be "protected activity"?
To file a claim under Dodd-Frank, a whistleblower MUST file a complaint with the SEC.
If the boss gets mad and fires you for calling the SEC, you can make a complaint against that unlawful retaliation. Dodd-Frank extends that employee protection to prevent retaliation not just against the employee, but also against and contractor, agent or associated others.
The Dodd-Frank Act protects three types of whistleblowing:
- Making a complaint to the SEC
- initiating, testifying in, or assisting in any SEC investigation, whether you made the initial complaint or not.
- Reporting things that are required or protected under the Sarbanes-Oxley Act of 2002, the Securities Exchange Act of 1934, and any other law, rule, or regulation that involves the SEC.
Protection can begin as soon as the evidence suggests that management knew of the SEC complaint.
However, if the employee has concealed the protected activity from the employer, then an issue might arise about whether the employer knew about it before imposing the retaliatory action. For this reason, some whistleblowers will notify the employer directly, through a means that establishes the date on which the employer received the notice. Certified mail, email, and faxes can all provide evidence of the date of receipt. Sometimes, the employer's investigation or interrogation of an employee can reveal employer knowledge of the protected activity.
The employee is not required to prove the underlying violation. The employee needs only a "reasonable basis" to believe that a violation might have occurred.
5. Can an employee go too far: is some conduct not protected activity?
Yes, if you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.
The Secretary of Labor has recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it "is lawful and the character of the conduct is not indefensible in its context." A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost protection after swearing at a supervisor, refusing to change their conduct, and daring the employer to fire the employee.
6. What if the employer makes a mistake and retaliates against someone who did not engage in protected activity?
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.
7. What is an adverse employment action?
Any action that materially affects the value of your job is an adverse employment action. A discharge is clearly adverse. A demotion, cut in pay, denial of promotion (if someone else gets that promotion), or denial of benefits would also be considered adverse. The Department of Labor will also recognize a claim against a "hostile work environment," although courts still disagree about what employer actions would make the workplace sufficiently "hostile." Other employer actions that have been held to be adverse and therefore against the law, include a refusal to hire or rehire, blacklisting, reduction in work hours, reassigning work, transfer, denial of overtime, assignment to undesirable shifts, reprimands, threats to discharge or blacklist, providing unfavorable reference, damaging financial credit, close supervision, unpleasant assignments, eviction from company housing, and a sudden drop in evaluation scores after the protected activity.
8. How do I prove that the protected activity caused the adverse action?
Causation can be proved either by direct evidence or by an inference.
Direct evidence is evidence that the employer was mad about the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer's "animus" against protected activity. Similarly, if the employer announces that whoever calls the SEC will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.
However, the Department of Labor recognizes that most employers are smart enough to suppress direct admissions of their motives. So, the Department can find causation based on inferences. For example, if the worker calls the SEC, and you can prove that the employer had an idea about who called, and that worker is fired shortly thereafter, the timing can support an inference that the protected activity caused the discharge. The timing can support an inference of retaliation when it is as long as six months or a year from the employer's discovery of the protected activity.
An inference of causation can also be drawn from an employer's failure to follow normal procedures, use of false evidence, changing explanations, or a pattern of adverse actions after employees engage in protected activity.
9. Does the employee have to show that the employer knew about the whistleblower’s report to the SEC?
No. If the employee also made the report through internal channels they will be protected, even if the employer does not know that they made a report to the SEC.
10. How do I file a complaint?
A complaint of retaliation for whistleblowing under Dodd-Frank must be filed through the SEC. You can find more information through the Office of the Whistleblower.
11. When must the complaint be filed?
A Dodd-Frank retaliation claim must be brought within 6 years of the date of the reported violation. In certain circumstances, this can be extended, but a claim can never be brought more than 10 years after the reported violation.
12. What happens after I file the complaint?
After a tip is received by the SEC, it is fully reviewed by SEC Enforcement staff. If the complaint justifies further investigation, it is referred to one of the 11 SEC regional offices, a specialty unit, or to the Home Office. If the tip involves an ongoing investigation, it is forwarded to the staff involved with that matter. A tip may be used in different ways, whether to initiate an enforcement investigation, or to begin a review of security filings or regulated entities. The SEC generally does not disclose whether it has opened an investigation to protect the integrity of that process.
SEC generally does not disclose whether it has opened an investigation to protect the integrity of that process.
After the completion of an investigation, the SEC will post all successful actions which resulted in If you or your attorney works with SEC staff, you or your attorney may be contacted to alert you of the potential to collect an award. (This does not guarantee you will be eligible for that reward)
Awards for blowing the whistle for SEC violations can be from 10% to 30% of the amount the SEC recovers in sanctions. To be eligible for an award, the complaint must satisfy some guidelines set by the SEC:
- Information must be original, defined as independent knowledge or analysis not already known by the Commission and not taken exclusively from certain public sources, and to be voluntarily provided.
- The information must lead to a successful enforcement action. Information can be determined to lead to a successful enforcement action when it is specific and submitted timely causing the SEC to open or re-open an investigation or lead to a new inquiry in an existing investigation. If the investigation is already underway, the information must significantly contribute to the success of the action.
- The SEC must obtain monetary sanctions totaling more than $1 million dollars.
People NOT eligible for the award include:
- People who have a pre-existing legal or contractual duty to report this information to the Commission.
- Attorneys attempting to use information obtained from clients as claims for themselves.
- People who obtain the information illegally.
- Foreign government officials
- Employees who learn of the information from another employee or from the internal reporting processes within the organization.
- Public accountants working on SEC engagements
- People criminally connected with or who directed, planned or initiated the conduct reported on
The award amount is determined by different factors including the effectiveness of the information and outcome of the investigations. The rules do not require an employee to report internally to their employer, however, there are strong incentives to do so, including a possible increased reward amount. Finally, an employee is still eligible for an award if they internally report the information and their employer submits it to the SEC.
Whether or not you collect a whistleblower award from the SEC, you are protected from retaliation for making that report. If you are retaliated against because you file a complaint with the SEC, you can bring suit in federal court.
13. What are the remedies for retaliation available to me?
Successful whistleblower claimants can recover remedies in court that include:
- double back pay and benefits (including lost overtime)
- front pay
- compensatory damages (emotional pain and suffering)
- other equitable remedies (abatement and injunctions)
- Remedies also may include payment of:
- attorneys' fees
- expert witness fees
- court costs
- tax consequences
"Front pay" may be sought in place of reinstatement, but reinstatement must be ordered upon a finding of wrongful discharge. Still, the courts will award front pay in place of reinstatement in cases where reinstatement is not a "viable option." Complainants have a duty to "mitigate" (reduce the potential amount of) damages, for example, by looking for substitute employment.
14. Should I get a lawyer?
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a whistleblower case. In addition, a lawyer experienced in Dodd-Frank claims can help you decide specific issues such as whether your initial complaint with the SEC should be “anonymous.” Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will be relying on the judge to award a fair amount of attorneys fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then a lawyer can help make sure the complaint gets filed on time and at the right place.
When you shop for an attorney, look for attorneys who have experience in employment matters, or in whistleblower matters specifically. For more information, see our site's attorney resources page.
Having a lawyer is not required to make a report to the SEC, but it is helpful as the rules can be complicated. Some whistleblowers have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
15. Where can I get more information?
A comprehensive source of information is:
Tom Devine's recently published Corporate Whistleblower's Survival Guide
Other resources for legal help include:
Researchers can also access OALJ decisions.