Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, state legislatures across the country have accelerated their discussion of new laws either restricting or further protecting access to abortions.  A state senate bill in South Carolina, S. 1373 currently pending in the Senate Committee on Medical Affairs, would not only ban almost all abortions in that state, but would also afford novel whistleblower protections. Specifically, S. 1373 imposes criminal penalties, punishable by imprisonment for ten years, for persons who “take any action to impede a whistleblower from communicating about a violation of this article with the Attorney General, a solicitor, or any other person authorized to bring an action in violation of this article.”

Continue Reading South Carolina Abortion Bill Contains Harsh Criminal Penalties for Interfering with Whistleblowers

Exchange Act Rule 21F-17, adopted in 2011 under the auspices of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, prohibits any person from taking any action to impede an individual from communicating directly with the SEC, including by “enforcing, or threatening to enforce, a confidentiality agreement . . . .”  The SEC has prioritized enforcing this rule expansively, by requiring employers to provide SEC-specific carveouts to policies and agreements governing confidentiality.  According to an Order issued last week against The Brink’s Company ( “Brink’s” or “Brinks”), the SEC seems to suggest that employers must provide a specific carveout in restrictive covenant agreements permitting employees and former employees to report information to the SEC in addition to the statutory disclosure provided for in the federal Defend Trade Secrets Act (DTSA).

Continue Reading Employers Beware – SEC Renews Enforcement Initiative Against Agreements (This Time a Non-Compete) That Interfere with Whistleblowers’ Unfettered Access to the SEC

Employees who resign from work, sue their employer, and assert “constructive discharge” shoulder a heavy burden to demonstrate that they had no choice but to resign. A recent decision of the Massachusetts Appeals Court, Armato v. Town of Stoneham, shows just how heavy that burden is.

Continue Reading Massachusetts Appeals Court Rejects Whistleblower’s Constructive Discharge Claim

On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”).   Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.

In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”).  Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.

Continue Reading Burden Shifting: California Supreme Court Settles Confusion Over Section 1102.5 Claims

On January 26, 2022, legislation (“Amendments”) amending and significantly expanding the scope of New York’s whistleblower laws will take effect.

As our previous Insight explained in more detail, the Amendments make it much easier for individuals to bring a retaliation claim under New York Labor Law § 740 (“Section 740”) and increase coverage for workers who allege that they have been retaliated against for reporting suspected employer wrongdoing to include former employees and independent contractors.

Continue Reading New York’s Expanded Whistleblower Protections and Notice Requirements Take Effect January 26, 2022

November 17, 2021, the Department of Labor (“DOL”), National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) conducted a webinar on Ending Retaliation and Promoting Workers Rights.  The webinar is the first component of a “Joint Initiative” devoted to “vigorous enforcement” of laws against retaliation, through closer inter-agency cooperation.  The webinar was moderated by EEOC Regional Director Robert Canino and involved over 90 minutes of detailed remarks from Solicitor of Labor Seema Nanda, NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows and Acting DOL Wage and Hour Division Director Jessica Looman.

Continue Reading Joint Initiative of Ending Retaliation and Promoting Workers’ Rights Promises More Aggressive Enforcement of Federal Anti-Retaliation Laws

The Securities and Exchange Commission’s Whistleblower Program under the Biden administration has picked up where it left off under President Obama, aggressively enforcing Rule 21F-17(a) against employers whose policies may impede employees from communicating with the SEC.  On June 23, 2021, the SEC fined Guggenheim Securities, LLC (“Guggenheim”) for maintaining a policy that it contended impeded potential whistleblowers from communicating with the SEC by requiring employees to obtain permission before reporting securities violations. Even though the SEC was unaware of any instances in which a Guggenheim employee was prevented from reporting a potential securities law violation or in which Guggenheim acted to enforce the policy, the SEC nevertheless found that the company had violated Rule 21F-17(a).

Continue Reading Back in the Saddle: SEC’s Whistleblower Program Is in Full Swing Under the Biden Administration

On November 6, 2018, the U.S. Court of Appeals for the Tenth Circuit handed down a decision that impacts employers across all industries, including the financial services industry. In a “win” for employers, the Tenth Circuit ruled that “…the False Claims Act’s anti-retaliation provision unambiguously excludes relief for retaliatory acts which occur after the employee

On June 25, 2018, President Trump signed into law the Whistleblower Protection Coordination Act (the “Act”), permanently reinstating the Whistleblower Ombudsman Program, which was created in 2012 to encourage employees of federal government administrative agencies to report wrongdoing but expired on November 27, 2017 due to a five-year sunset clause.

The Act, which Congress passed

Featured on Employment Law This Week:  The Securities and Exchange Commission (“SEC”) recently issued the largest whistleblower awards under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in history.

Affirming the payout of over $49 million to two whistleblowers and over $33 million to a third for information that led to successful