On Wednesday this week, all nine justices agreed that the Dodd-Frank Act’s anti-retaliation provision does not extend to an individual who has not reported a violation of the securities laws to the Securities and Exchange Commission (“SEC”). In other words, making only internal complaints does not shroud an employee in whistleblower protection under the Dodd-Frank Act.
My colleague Alta Ray, was quoted in a Business Insurance article entitled, Injury Records Rule May Lead to More Citations in which she provides steps for employers to avoid retaliation against employees who report workplace injuries. The article examines the new anti-retaliation provisions to the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule and the challenges the provisions pose to employers.
While the Dodd-Frank Act provides various protections to whistleblowers, federal courts have inconsistently interpreted who precisely qualifies as a whistleblower. In a much-anticipated opinion, the Second Circuit Court of Appeals held, in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally – but not to the Securities and Exchange Commission – are protected from retaliation under the law.