The Boston area’s success is just the latest evidence of the Whistleblower Program’s tremendous and growing power. The most recent annual report from the Office of the Whistleblower revealed record numbers in both the number and dollar value of awards granted to individuals.
Whistleblowers are bravely coming forward – and are doing so in droves.
In just over four years, the program has gained traction against deep and systemic corruption. While the decision to come forward is never taken lightly, we are heartened to see that so many truth- tellers feel empowered to do so. To learn more about the specific protections and benefits offered by the SEC Whistleblower Program, please see here.
The policy memo arrives amidst recent public dispute among SEC directors regarding investigating and prosecuting individuals involved in financial fraud. Given the slew of multi—billion dollar settlements involving nearly all of Wall Street’s major firms in the last few years, concern has grown that financial penalties are viewed as a tax write-off, not a powerful deterrent to misconduct. As SEC Chairman White stated in a speech last year, “A company, after all, can only act through its employees and if an enforcement program is to have a strong deterrent effect, it is critical that responsible individuals be charged, as high up as the evidence takes us.”
The reality is, finding and building cases against individuals is incredibly difficult. These cases are hampered by corporations utilizing massive financial resources to defend executives, the difficulties of gathering evidence from multiple, sometimes foreign, jurisdictions, and corporate structures themselves which are often designed to protect senior officials. Indeed, just last year, while French banking giant BNP Paribas was fined nearly $9 billion for processing financial transactions through countries subject to U.S. sanctions, the Justice Department maintained that the bank withheld records that might have implicated individual employees until after the deadline to file individual charges had passed. The odds are seemingly stacked in favor of corporations.
Whistleblowers fundamentally alter these odds.
As federal law enforcement renews its efforts to bring down the bad actors behind these devastating frauds, we must keep in mind that whistleblowers may be the sharpest tool in the enforcement arsenal. By exposing high-level insiders with detailed accounts of wrongdoing, whistleblowers can provide authorities with early and actionable intelligence. Dodd-Frank has deputized us all to act as the government’s eyes and ears. Empowered with an army of courageous witnesses, federal prosecutors and enforcement lawyers will build formidable cases that ferret out wrongdoing and promote a corporate marketplace where integrity is the price of admission.
Another Victory for Whistleblowers: Federal Appeals Court Rules that Internal Reporting Triggers Protections
In the meantime, this more expansive view of whistleblower protections not only empowers corporate whistleblowers, it also serves as an important reminder that companies must develop and encourage internal policies and procedures for the reporting of misconduct. For several years, we have examined the growing ethical crisis in corporate America and the crucial role truthtellers must play if we wish to reverse the prevalence of win-at-any-cost corporate cultures. With enhanced protections for whistleblowers, companies must shift their focus from silencing and retaliating against whistleblowers to establishing compliance programs that more effectively detect, deter and mitigate wrongdoing.
Deciding when, if and how to blow the whistle is an extraordinarily complex decision. Please see this short video for some of the key issues to consider. And, for more information on the specific employment protections offered by the SEC Whistleblower Program, please see here.
The SEC’s expansive view on whistleblower protections essentially confirms that to qualify for Dodd-Frank anti-retaliation protections, a whistleblower may report potential violations to the SEC directly or internally through an employer’s compliance channels. According to the SEC, the clarification “avoids a two-tiered structure of employment retaliation protection that might discourage some individuals from first reporting internally in appropriate circumstances and, thus, jeopardize the investor-protection and law-enforcement benefits that can result from internal reporting.”
While many organizations work hard to build credible ethical cultures, over the last few years, we have witnessed increasing efforts by some organizations to dismantle and deter the landmark reforms of Dodd-Frank. Indeed, through the use of secrecy agreements, legal bullying, and the creation of omerta cultures, some companies aggressively discourage whistleblowers from reporting misconduct.
This must stop.
Last year, we, along with the Government Accountability Project and 250 other organizations, submitted a petition urging the SEC to, among other things, engage in rule-making to clarify and strengthen whistleblower protections. By issuing this guidance on internal reporting, the SEC has sent a clear message that it will do just that. We applaud this action by the SEC and its clear aim to protect and encourage whistleblowers.
While courts have generally sided with the SEC holding that a whistleblower need not report misconduct directly to a government agency to qualify for the anti-retaliation protections afforded by Dodd-Frank and Sarbanes-Oxley, in 2013, a federal appeals court ruled the other way. In all likelihood, the question of what triggers whistleblower protections will be an issue of ongoing debate in the courts that may go to the highest court in the land.
In many ways, this case and those like it are almost academic battles that will ultimately establish key legal precedent. So what’s a whistleblower to do? The key takeaway from the Bio-Rad matter is that individuals who wish to report misconduct would be wise to consider an early or simultaneous report to the SEC to assure eligibility for the protections guaranteed by statute to all whistleblowers. Even a cursory filing of original information may be sufficient. In the long run, corporate compliance programs are a critical first line of defense against corporate wrongdoing. But for those defenses to work, whistleblowers must be encouraged and protected when they use them.
Despite sweeping reform efforts and headline-making consequences of corporate misconduct, the findings make clear that attitudes toward corruption within the industry have not changed for the better. Indeed, nearly half those polled find it likely that their competitors have engaged in misconduct in order to gain an edge in the market. On an individual level, 32 percent of professionals with less than a decade in the business would engage in insider trading if they could get away with it. That’s twice the figure (14 percent) for employees with more than two decades in the industry. What does this mean for the future of the industry and how will it impact the fragile confidence of investors?
We are most concerned by findings relating to the widespread use of secrecy policies and agreements—a full 25 percent of individuals earning $500,000+ per annum have been asking to sign a confidentiality agreement that would prohibit reporting illegal or unethical activities to the authorities. As federal agencies and Congress has made clear, corporate entities cannot obstruct an individual’s fundamental right to freely engage with his or her government.
For more information on our findings, please see the full report here or see select highlights in this infographic.
Yesterday, the SEC announced a landmark enforcement action against engineering giant KBR for its use of confidentiality agreements that required individuals to obtain prior approval from the company’s legal department before discussing matters with outside parties…or face discipline and possible termination. This action sends a powerful message to companies that have sought to silence whistleblowers. Indeed, the proliferation of gag orders is a scourge on corporate culture, a threat to financial reform, if not democracy itself.
We have been at the forefront of advocacy efforts to protect truth tellers and, by extension, encourage open and transparent cultures at organizations across the United States and abroad. Last summer, I addressed the dangers of these gag orders in an article I drafted together with the Government Accountability project for the New York Times Dealbook. The op-ed followed on the heels of our work to assemble a coalition of organizations, which represented millions of citizens, petitioning the SEC to address the issue of silencing and retaliating against employees who speak out against wrongdoing.
In addition to these grassroots efforts, we have also addressed the more substantive issues at play in such employment agreements. In a recent article in the ABA Journal of Labor & Employment Law, the authoritative publication for workplace issues, together with Professor Richard Moberly and fellow attorney Jason Zuckerman, I examine the legality and enforceability of employment agreements that effectively undermine the crucial investor protection efforts established by the Dodd-Frank Act.
We remain steadfast in our belief that in this country, individuals have an unwaivable right to report wrongdoing to the government. And we will continue our work to protect this right and those courageous individuals who stand up to corruption.
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Website Editor &
Jordan A. Thomas
SEC Whistleblower Advocate
212-907-0836[ View Bio ]
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