The Securities and Exchange Commission has published fresh guidance on who qualifies for whistleblower protections under the Dodd-Frank Act, essentially confirming the view that a person is not required to report misconduct to the SEC’s Office of the Whistleblower to qualify for the expanded anti-retaliation protections under the law.
The interpretive guidance, posted to the SEC’s website on Aug. 4, clears up confusion about the word “whistleblower” as it appears in two different rules implementing Section 21F of the Securities Exchange Act. That section was created by Dodd-Frank to establish whistleblower protections and to create rewards for anyone who brings useful information to the SEC about corporate misconduct.
The question was whether a person must report possible misconduct to the SEC for the purpose of seeking a whistleblower reward—rewards are addressed by Rule 21F-9(a)—to qualify for anti-retaliation protections defined by Rule 21F-2(b)(1).
The answer, according to the SEC: no. As soon as a person reports misconduct via internal channels such as compliance hotline, or to any part of the SEC at all (rather than the Office of the Whistleblower specifically), he or she qualifies for the anti-retaliation provisions granted under Rule 21F-2(b)(1).
Compliance officers should find comfort in that interpretation, since it avoids creating a two-tier system of whistleblowers, where those who go directly to the SEC seeking rewards also qualify for anti-retaliation protections, while those who work with the internal compliance department first do not.
“We adopted Rule 21F-9(a) to specify the reporting procedures that must be followed by an individual who seeks to qualify as a whistleblower under Rule 21F-2(a) and thus to be eligible for an award and the heightened confidentiality protections,” the SEC said in its guidance. “[W]e have consistently have consistently understood Rule 21F-9(a) as a procedural rule that applies only to help determine an individual’s status as a whistleblower for purposes of Section 21F’s award and confidentiality programs.”
Anti-retaliation protections, the SEC went on to say, are a different matter. Recent court rulings expressed some confusion about how Rule 21F-9(a) intersects with those protections in Rule 21F-2(b)(1), so the agency wanted to clarify its stance. The language of Rule 21F-2(b)(1) says anti-retaliation protections apply “whether or not [an individual] satisf[ies] the requirements, procedures and conditions to qualify for an award,” so therefore the employee does not need to be seeking a whistleblower payout to secure those protections, the SEC said.