URGENT UPDATE
Make Sure Disclosures Are Protected!
In February 2018, the Supreme Court of the United States ruled in Digital Realty Trust v. Somers that corporate whistleblowers are not protected under the Dodd-Frank Act if they report only to internal compliance programs. The Court held that a whistleblower must report to the Securities and Exchange Commission to obtain anti-retaliation protections. Although this ruling only concerns the Dodd-Frank Act, its interpretation of this provision could apply to other whistleblower laws that don’t explicitly protect internal whistleblowers. This includes OSHA whistleblower laws, banking whistleblower laws, and most environmental whistleblower laws.
Tools to Understanding Protected Disclosures
“It is the right, as we as the duty, of every citizen…to communicate to the executive officers any information which he has of the commission of an offense against those laws…the right does not depend upon any of the amendments of the Constitution, but arises out of the creation and establishment by the Constitution itself of a national government.”
- 17 C.F.R. Part 205, Rules of Professional Responsibility for Attorneys under the Securities and Exchange Commission
- Scope of protected activity is based on law for which you are filing a claim. This is explained in Rules 4 – 15, 16-19
- Jordan v. Sprint, 2006-SOX-41 (DOL ARB, September 30, 2009) (Attorneys protected as whistleblowers under the statute).
- Willy v. ARB, 423 F.3d 483 (5th Cir. 2005) (Whistleblower who was working as in-house counsel permitted to pursue case)
- Van Asdale v. International Game Tech., 577 F.3d 989 (9th Cir. 2009) (Whistleblower who was the corporate attorney permitted to pursue case)
- Sanjour v. EPA, 56 F.3d 85
- Garcetti v. Ceballos, 547 U.S. 410
- Carl v. Children’s Hospital, 701 A.2d 159
- Wiest v. Lynch, 710 F.3d 121
- Tides v. The Boeing Co., 644 F.3d 809
- Kasten v. Saint-Gobain, 131 U.S. 1325 (2011) (oral complaints are covered as protected activity)
- NLRB v. Scrivener, 405 U.S. 117 (1972) (applied a broad interpretation to the scope of protected activity) (precedent followed in other feral whistleblower laws)
- Linn v. United Plant Guard, 383 U.S. 53, 62 (1966) (applying First Amendment principles to definition of protected speech und NLRA)
- Gateway Coal v. UMWA, 414 U.S. 368 (1974); (Work stoppage to protest dangerous working conditions considered protected activity under the Labor Management Relations Act and NLRA)
- Sure-Tan v. NLRB, 467 U.S. 883 (1984) (broad coverage under act/reporting undocumented workers to Immigration and Naturalization Service constituted unfair labor practice)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (First Amendment protected teacher who complained about school budget to newspaper)
- Brown & Root v. Donovan, 747 F2d 1029.
- Kansas Gas & Elec. v. Brock, 780 F.2d 1505
- Staub v. Proctor Hospital, 131 U.S. 1186 (2010) (retaliation law created tort-like remedy and permitted court to hold hospital liable based on animus of supervisor who did not make the ultimate decision to fire employee)
- Pettway v. American Cast Iron, 411 F.2d 998 (5th Cir. 1969) (provides a broad interpretation of protected activity)
- Hochstadt v. Worcester Foundation, 545 F.2d 222 (1st Cir. 1976)
- Alexander Dyck, et al. “Who Blows the Whistle on Corporate Fraud?” The University of Chicago Booth School of Business Working Paper No. 08-22(2009)