Three speakers recently presented a webinar titled “Whistleblowing, Bounty Hunting, and Retaliation.” They are two attorneys with employment law firm Littler Mendelson, Reid Bowman and Gregory Keating, and Dave Curran, executive vice president of IntraLinks, which provides secure computing power and related technologies.
What’s with the bounty hunting? In case you weren’t aware of it, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 offers financial incentives to whistleblowers: A percentage of any collections made by the Securities and Exchange Commission as the result of information provided goes to the whistleblower. In addition, broader regulations and some recent Supreme Court rulings have favored retaliation plaintiffs, who can also collect some pretty big damages in court. Some observers see the high court as pro-business, but it has in recent years ruled in favor of every retaliation plaintiff whose case it has considered. Employees who believe they’ve experienced retaliation engage in what they feel is protected activity, the employer learns about it, and employer does something bad to employee.
Curran points out that all the following laws contain antiretaliation provisions: Title VII of federal civil rights law, the Occupational Safety and Health Act, the Americans with Disabilities Act, the False Claims Act, the Equal Pay Act, the Fair Labor Standards Act, the National Labor Relations Act, the Age Discrimination in Employment Act, the Uniformed Services Employment and Reemployment Rights Act, the Rehabilitation Act … and more. At least 16 states have their own antiretaliation laws. In 2010 the Department of Justice collected $3 billion in False Claims Act cases alone.
And what’s protected activity? Here’s an area that’s recently been expanded by Supreme Court rulings. It used to be that these acts were protected: filing an Equal Employment Opportunity Commission claim or expressing the intent to do so, filing a lawsuit, or testifying or serving as a witness in a lawsuit or investigation. But the high court ruled that any conduct expressing opposition to an organizational policy or practice qualifies.
A significant expansion of retaliation claims came with the 2006 Burlington-Northern v. White ruling, in which the plaintiff was not terminated—she was given her job and back pay after a suspension. But justices felt her suspension alone was retaliation. And, since Enron’s famed Sherron Watkins tried to blow the whistle in 2002, at least five new laws have been passed protecting whistleblowers—Dodd-Frank and Sarbanes-Oxley among them. And the Department of Labor’s Administrative Review Board uses an expansive definition of protected activity: In a recent case, it refused to allow the termination of an employee who had taken confidential information from her employer, because she took it in order to prove her whistleblower claim.