A coalition of whistleblower advocates has petitioned the Securities and Exchange Commission, urging it to do more to prevent retaliation against those who report malfeasance at public companies.
The effort, intended to coincide with the fourth anniversary of the Dodd-Frank Act, is spearheaded by the law firm Labaton Sucharow, the Government Accountability Project, a whistleblower protection an advocacy organization, and 250 other organizations. Two petitions call upon the SEC to “clarify and strengthen certain aspects of the agency's Whistleblower Program.”The first petition, rulemaking proposed by Labaton Sucharow and GAP, addresses “unscrupulous legal maneuvers” companies use when trying to silence potential whistleblowers. Examples include: preventing employees from consulting independent legal counsel, requiring notice of external reporting, demanding waivers of any future whistleblower awards, and threatening lawsuits to enforce secrecy agreements.
The petition provides companies with clear guidance regarding these problematic employment agreements. The petition also urges the SEC to issue a policy statement regarding the current scope of employment protections available to SEC whistleblowers and its intent to prosecute companies that retaliate against them. Notably, it urges the SEC to “clarify that whistleblowers are in fact eligible for protection when they make disclosures within their respective corporations” and clarify that it is legally protected to disclose evidence of crime or other violations of SEC rules, “despite any assertion by wrongdoers that employees have stolen their ‘property.’”
The petition says that, despite the SEC’s original rule, attorneys who represent whistleblowers have seen “repeated examples of employment, severance, and confidentiality agreements that purport to limit the extent to which employees or former employees can participate in the SEC Whistleblower Program, and/or receive congressionally-mandated incentives from doing so.”
A second, non-rulemaking petition – submitted by Americans for Financial Reform, the National Employers Lawyers Association, the International Brotherhood of Teamsters and other prominent groups – asks the SEC to: launch a series of public hearings to discuss the problem of workplace retaliation and ways to increase reporting; create an Advisory Committee on Whistleblower Reporting and Protection; and engage in appropriate rulemaking to clarify and strengthen whistleblower protections.
“As awareness and interest in the SEC Whistleblower Program and other similar programs has grown, they have come under stealth attack by Corporate America,” Jordan Thomas, chair of the whistleblower representation practice at Labaton Sucharow and a former assistant director in the SEC’s Enforcement Division, said in a statement. “If the SEC doesn’t adopt appropriate countermeasures, gag orders, retaliation and other forms of legal bullying will quickly erode the potential of this powerful investor protection tool.”