HomeWebcastDealing with Whistleblowers: What Employers Need to Know
Online CLE Whistleblowers CLE

Dealing with Whistleblowers: What Employers Need to Know

Live Webcast Date: Wednesday, June 14, 2017 from 3:00 pm to 5:00 pm (ET)
Employment/Labor Law CLE & CPEWorkplace Management CLE & CPERecording

Online CLE Whistleblowers

Join us for this Knowledge Group Online CLE Whistleblowers Webinar. The Dodd-Frank Act of 2010 increased whistleblowing by providing for the establishment of whistleblower bounty programs for both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission. Under these programs, whistleblowers who provide unique and useful information will be entitled to up to 30 percent of the recovery obtained through actions brought by the government, when it exceeds $1 million.  With the emergence of increasing federal and state whistleblowing regulations – and stepped up enforcement of those regulations – employers need to be sensitive to whether their interactions with current and former employees are consistent with those regulations.  In particular, employer-employee severance and separation agreements have been the focus of several recent SEC enforcement actions, and these agreements are increasingly regulated by courts and other agencies.

In particular, in some of its recent enforcement actions, the SEC has fined several companies for entering into severance and separation agreements that require employees to waive any monetary awards they could receive from serving as government whistleblowers.  The SEC takes the position that such agreements violate its rules that prohibit any conduct that could “impede” a person from “blowing the whistle” to the SEC.  The SEC has also increased its investigation of conduct it views as retaliatory against whistleblowers – whether the whistleblower went to the SEC, or only blew the whistle internally at the company.   

Other federal statutes and agency regulations and court rulings have also increasingly regulated such severance and separation agreements.

In a two-hour Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss the significant and latest issues surrounding severance and separation agreements, and how those agreements are viewed in light of the Dodd-Frank Act and its whistleblower programs. They will also offer best practices in helping employers avoid the risks brought by such agreements.

This 2-hour webcast will discuss the following key provisions:

  • Whistleblower Programs Under the 2010 Dodd-Frank Act and other laws
  •  SEC Rule 21F-17
  • The Nature of Separation and Severance and Release Agreements
    • Why employers continue to create and why employees can't help but sign?
    • Why courts and agencies continue to increase review of such separation and release agreements?
  • Typical Claims Restricted by Separation and Severance and Release Agreements
  • The Most Recent Fines and Penalties Issued by the SEC and Other Agencies

Who Should Attend

  • Employers and Employees
  • Human Resource Personnel
  • In-house Counsel
  • Corporate Counsel
  • Top Level Management
  • Benefits Managers
  • Other Related and Interested Professionals 

Faculty

Online CLE Whistleblowers
Joseph Z. Fleming
Shareholder
Greenberg Traurig, P.A.
Online CLE Whistleblowers
Mark D. Cahn
Partner
Wilmer Cutler Pickering Hale and Dorr LLP
Online CLE Whistleblowers
Andrew S. Nix
Partner
Bradley Arant Boult Cummings LLP

Click Here to Read Additional Material

Online CLE Whistleblowers

Joseph Z. Fleming, Shareholder
Greenberg Traurig, P.A.
  • The Reasons for Separation Severance Agreements related to Whistleblowing A. The “at-will” employment rule, because of its erosion by constitutional, statutory, and regulatory rights, makes it appropriate to consider separation and release agreements, even when an employer terminate “at-will” employees.
    • B. The reason they are referred to as separation (and severance) agreements
  • The Use of Separation and Release Agreements and Severance Agreements and Timing Issues related to Whistleblowing
    • Generally a separation agreement is primarily utilized in several ways
      B. Additional concepts that relate to separation severance agreements
  • Collective Bargaining Agreements
  • Complicated issues that relate to whistleblowing in connection with separation and severance agreements
    • General releases
    • Hostility of courts and agencies
  • The various increasing requirements that relate to separation and severance agreements involving whistleblowing issues
    • The statutes, such as the Age Discrimination in Employment Act
    • The unique provisions that may regulate federal and state whistleblowing and qui tam processes
      • Privacy
      • Restrictions on providing information that relate to whistleblowing, qui tam and other types of litigation or proceedings
      • Public policy
      • Agencies’ positions
      • Judicial review
  • Dealing with Whistleblowing, Related Threats and Litigation
    • Immediate actions to consider in connection with dealing with a whistleblower, and also a settlement
      B. Litigation issues
    • Federal and state whistleblowing provisions – Illustrations

Mark D. Cahn, Partner
Wilmer Cutler Pickering Hale and Dorr LLP
  • Section 922 of Dodd Frank provided for the creation of a Whistleblower Program at the SEC.
    • Financially rewards whistleblowers for reporting potential securities law violations of all types.
    • Offers confidentiality protections
    • Broadly protects whistleblowers from retaliation for making disclosures or helping an investigation
    • Prohibits corporate acts designed to impede communications with the SEC
    • Allows whistleblowers to go directly to the SEC
  • Financial Reward
    • When a person “voluntarily” provides “original information” that leads to a “successful” enforcement proceeding resulting in monetary sanctions of over $1 million
    • Whistleblower entitled to an award of at least 10 percent and no more than 30 percent of monetary sanctions actually recovered.
  • Corporate Confidentiality Agreements – “Impeding”
    • Rule 21F-17(a) prohibits:
      • “tak[ing] any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.”
    • Not limited to employers; not limited to confidentiality agreements
    • Severance agreement, codes of conduct, benefit plan documents, settlement agreements; Upjohn warnings
  • HomeStreet Enforcement Action (2017)
    • Firm allegedly required employees to sign severance agreements waiving potential whistleblower awards
    • “Impeding” section of Order focuses on firm’s actions to determine the identity of the whistleblower and communications with former employee considered to be whistleblower regarding whether employee entitled to indemnification if he were a whistleblower and requesting certification that he was not.  
  • Protections for Whistleblowers under Dodd Frank
    • No employer may discharge, demote, suspend or threaten harass or discriminate against an employee for providing information or testimony about potential violations
      • Waiver – can’t waive anti-retaliation provisions by agreement
      • Relief – Reinstatement, 2x back pay, attorneys fees/costs
      • Subpoenas – Nationwide service of process
    • Anti-retaliation provisions are enforceable in an action brought by the Commission
  • Is Internal Reporting only covered by Anti-Retaliation Provisions?
    • Dodd Frank contains three anti-retaliation provisions.
      • The first two provisions explicitly protect only individuals who disclose to the SEC
      • The third provision protects whistleblowers who make disclosures that are required or protected by Sarbanes-Oxley, the Exchange Act, and “any other law, rule or regulation subject to the jurisdiction of the Commission.”
    • Thus, it is unclear whether Dodd Frank’s whistleblower protections extend to individuals who make internal reports.
  • Interpretation of Whistleblower Protections
    • The SEC has interpreted this statute as protecting individuals who make internal reports; the majority of district courts have followed this interpretation
    • The Second and Ninth Circuits, and the Fifth Circuits, disagree as to whether the Dodd Frank anti-retaliation provisions protect only whistleblowers who report to the SEC
      • The Second Circuit, in Breman v. Neo@Ogilvy, LLC, held that these provisions protect whistleblowers who report securities law violations internally but not to the SEC.  In a 2-1 decision, a majority on the Ninth Circuit agreed with this interpretation in Somers v. Digital Reality Trust Inc.
      • The Fifth Circuit, in Asadi v. G.E. Energy (USA), LLC, held that Dodd Frank protects only whistleblowers who report to the SEC.
    • Issue ripe for Supreme Court review
  • Actions to Consider Now
    • Ensure that compliance culture encourages internal reporting and resolution of potential issues
    • Publicize internal reporting policies and benefits to the company of internal reporting; actively encourage reporting
    • Emphasize policies against retaliation
    • Revise confidentiality agreements to neither state nor imply that SEC reporting violates confidentiality obligations
    • Consider additional training
    • Dealing with Whistleblowers
      • Protect confidentiality,
      • maintain open lines of communication,
      • investigate complaints
      • memorialize corrective action taken

Andrew S. Nix, Partner
Bradley Arant Boult Cummings LLP
  • Background of Issue
  • DTSA
  • Recent SEC Enforcement Actions
    1. Black Rock, Neustar, SandRidge Energy, BlueLinx Holdings, Health Net, etc.
    2. More to come…
  • What companies should be doing now
    1. Review of whistleblower policies and procedures
    2. Review of existing employment and severance arrangements
  • Suggested language for inclusion in agreements
    1. Savings clause for confidentiality provisions
    2. Waiver for severance agreements
    3. DTSA language

Online CLE Whistleblowers

Online CLE Whistleblowers

Joseph Z. FlemingShareholderGreenberg Traurig, P.A.

Mr. Fleming represents management in labor, employment, safety, whistleblowing matters, and related complex litigation. He is listed in current and all prior editions of the Best Lawyers in America and all prior and current editions of Chambers USA America’s Leading Business Lawyers.  He is a Fellow in the College of Labor and Employment Lawyers, and also serves as an arbitrator for the American Arbitration Association and as a member of its Employment Panel and the International Centre for Dispute Resolution. Mr. Fleming has spoken at numerous ABA, Practicing Law Institute programs and other continuing legal education programs. He chairs the ALI-CLE Airline and Railroad Labor and Employment Law course, next scheduled in D.C. in Fall 2018.

Online CLE Whistleblowers

Mark D. CahnPartnerWilmer Cutler Pickering Hale and Dorr LLP

Mark Cahn is a partner at WilmerHale, specializing in securities litigation and enforcement.  From 2011-2013, Mr. Cahn served as the General Counsel of the Securities and Exchange Commission, and from 2009-2011 as the Commission’s Deputy General Counsel for Litigation and Adjudication.  While at the SEC, Mr. Cahn played a key role in the development of the SEC Whistleblower Program.  Mr. Cahn’s current practice focuses on representing companies and individuals in internal corporate investigations and in SEC, FINRA and other regulatory and government investigations and proceedings.  Mr. Cahn is a graduate of Yale Law School and Tufts University.

Online CLE Whistleblowers

Andrew S. NixPartnerBradley Arant Boult Cummings LLP

As a partner at Bradley, Andrew Nix practices in the areas of corporate and securities law. Andrew represents public companies in registered public securities offerings and counsels public companies regarding SEC reporting obligations, corporate governance matters, equity compensation arrangements and other issues related to their public company status, including compliance with the Dodd-Frank Act, the Sarbanes-Oxley Act, and NYSE and Nasdaq listing standards. Andrew also represents clients in private securities offerings and advises closely held institutions regarding various corporate and securities law issues. He has significant experience representing both private and publicly held companies in mergers and acquisitions, as well as advising businesses in connection with a broad range of general corporate matters, including corporate structure and reorganization. Andrew earned his J.D. from The University of Alabama School of Law and has a B.S. from Auburn University.

Online CLE Whistleblowers

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   Experience in labor and employment law

Course Code:
   146069

NASBA Field of Study:
   Business Law -Technical

NY Category of CLE Credit:
   Areas of Professional Practice

Total Credits:
    2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

Greenberg Traurig, LLP (GTLaw) has more than 2,000 attorneys in 38 offices in the United States, Latin America, Europe, Asia and the Middle East and is celebrating its 50th anniversary. One firm worldwide, GTLaw has been recognized for its philanthropic giving, was named the second largest firm in the U.S. by Law360 in 2016, and among the Top 20 on the 2016 Am Law Global 100.

Website: https://www.gtlaw.com/

WilmerHale is 1,000 lawyers strong, with 14 offices in the United States, Europe and Asia. The firm includes more than 500 litigators with unmatched trial, appellate and Supreme Court experience; a preeminent securities law practice with more than 200 lawyers; a regulatory practice that includes more than 100 lawyers who have held high-level government positions; an intellectual property practice enriched with more than 140 attorneys and technology specialists who hold scientific or technical degrees; more than 230 seasoned corporate lawyers and business counselors; and lawyers who focus on bankruptcy, environmental, labor and employment, real estate and tax matters. With a heritage that includes involvement in the foundation of legal aid work early in the 20th century, WilmerHale has consistently distinguished itself as a leader in pro bono representation.

Website: https://www.wilmerhale.com/

Bradley is a regional law firm with a global perspective. Our firm has more than 500 attorneys serving established regional, national and international companies, emerging businesses and individuals. Our offices—strategically located in Alabama, Florida, Mississippi, North Carolina, Tennessee, Texas, and the District of Columbia—provide an extensive geographic base from which to best accommodate our clients. Recognized across the country, our attorneys serve as national, regional, and statewide counsel for clients across many industries. Clients rely on us for innovative legal services that reflect a deep understanding of their business objectives.

Website: https://www.bradley.com/

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