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SEC’s Proposed Dodd-Frank Anti-Retaliation Rules: What Is An Employer To Do?

By David W. Garland and Allen B. Roberts

Major provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) will gain substance and vitality only with amplifying interpretive rules. On December 17 the period closed for submitting comments on rules proposed by the Securities and Exchange Commission (SEC) to implement whistleblower provisions added in a new Section 21F to the Securities Exchange Act of 1934 (Exchange Act). With the comment period having closed, and final rules expected to be implemented in the Spring of 2011, this is a good time to take account of the proposed rules regarding the statute’s anti-retaliation provisions and their potential impact on employers.   

Dodd-Frank authorizes bounty awards to eligible whistleblowers who voluntarily provide original information to the SEC about a violation of the federal securities laws leading to a successful enforcement action and resulting in a monetary sanction exceeding $1,000,000.  It is not surprising that much of the analysis and media attention generated by Dodd-Frank concerns the bases on which the SEC will make determinations about paying potentially enormous bounty awards that can range from 10% to 30% of the amount of monetary sanctions.

Section 21F also protects whistleblowers against retaliation by their employers, with the scope of protection circumscribed by the statutory definition of a whistleblower.  Rather than providing protection equally for internal disclosures to the employer and external disclosures to authorized agencies and authorities, as is seen commonly in whistleblower statutes, Section 21F protects only certain external disclosures. It defines a whistleblower narrowly as any individual, acting alone or jointly, who provides information relating to a violation of the securities laws to the SEC in the manner prescribed by the SEC.

For a whistleblower satisfying the statutory definition, Dodd-Frank’s Exchange Act amendment provides customary protections against direct or indirect employment reprisals of discharge, demotion, suspension, threat, harassment or any discrimination against a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower in providing information to the SEC in accordance with Section 21F. The amendment also prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or judicial or administrative action of the [SEC] based upon or related to such information.” Further, an employer may not retaliate against a whistleblower for “making disclosures that are required” under the Sarbanes-Oxley Act “and any other law, rule, or regulation subject to the jurisdiction” of the SEC. The whistleblower may commence an action in federal court against his or her employer for violation of the anti-retaliation provisions and seek reinstatement, two times the amount of back pay owed as a consequence of the retaliation, and litigation costs, including attorneys’ fees.

Departing from literal statutory text, the SEC’s proposed rules would not limit the definition of the term “whistleblower” to only those individuals who provide the SEC with information about actual securities violations.  Instead, the protection would be available to those providing information about a “potential” violation.

The proposed rules are more rigorous in standards set for bounty award qualification than employment protection. To be eligible for a bounty award, a whistleblower would be required to submit original information to the SEC in accordance with prescribed procedures and conditions.  But protections against employment reprisals would be available to individuals whether or not they qualified for a bounty award, and a determination that awhistleblower is ineligible to receive an award for any reason” would not deprive the individual of theExchange Act’s anti-retaliation protections.

Although proposed rules concerning retaliation are far less extensive than those for bounty awards, the SEC invited comment and suggestions for promulgating rules interpretingand implementing the anti-retaliation provisions. The SEC is aware of the business community’s unease with sweeping protections that would not take account of compliance realities and practicalities of certain employment relationships. Comment was invited specifically on whether the Exchange Act anti-retaliation protections should be applied broadly to any person who provides informationto the SEC concerning a potential violation of the securities laws,or whether the various procedural or substantiveprerequisites limiting consideration for a bounty award should apply. Similarly, the SEC requested comment on ensuring that appropriate employment actions (not based on reporting potential securities law violations) are not impaired by whistleblower protections and barring whistleblower protection for frivolous or bad faith claims – a feature of other statutes, but not Dodd-Frank’s Exchange Act amendment.

Most of the comments submitted in response to the proposed rules focused on the bounty award provisions. Very few addressed the questions posed by the SEC about the anti-retaliation provisions. Comments addressing bounty awards frequently focused on the features that detract from – and may even undermine – effective internal corporate compliance programs. The United States Chamber of Commerce and a small number of employers, however, have raised issues with the anti-retaliation provisions. As the Chamber pointed out, as a result of the lack of guidance regarding whistleblower protections, employers may not be able to effectively address employee violations of law or corporate policy without risking claims of retaliation under Dodd-Frank. For example, responsive to one of the SEC’s invitations to comment, the Chamber observed that nothing in the proposed rules affirmatively states that an employer may take appropriate disciplinary action against an employee for non-retaliatory reasons. One clear example would be attempting to win protection against an adverse employment action on the ground that one’s own wrongdoing or complicity in wrongful acts had been disclosed to the SEC. Additionally, the Chamber pointed out that employers should be able to discipline employees for conduct in violation of corporate codes of conduct or for failing to report internally potential wrongdoing – even if the employee has reported alleged wrongdoing to the SEC.  An employee’s complaint to the SEC would not be a shield against appropriate disciplinary action.

Bound by statutory language and aware of policy considerations and tensions between statutory provisions and compliance program requirements and incentives, the SEC now undertakes assessment of the comments it has received. The opportunity for the SEC is to frame a final rule that best incentivizes employers and their employees to join an effective common cause of corporate compliance consistent with sound programs that are appropriately structured, implemented and maintained.

Will any belief be sufficient to cloak a whistleblower in statutory protections? Will wrongdoing or complicity in it bar whistleblower protection? Whatever the contours of the SEC’s final rules, employers must be prepared with policies and procedures to carefully navigate the investigatory and disciplinary process, concerned that a misstep might expose them to potential liability under Dodd-Frank’s anti-retaliation provisions.

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Whistleblower provisions of Dodd-Frank are explored fully in the white paper, The Sounds of New Whistleblower Awards and Protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act, as appeared in Bloomberg Law Reports – Securities Law.