As part of Outten & Golden's collaboration with Labaton Sucharow on the Corporate Whistleblower Watch newsletter, Sage Counsel is an occasional feature addressing common issues at play in a wide range of whistleblower issues
Erhart v. Botfl Holding, Inc, No. 15 Civ. 02287, 2017 WL. 588390 (SD. Cal. Feb. 14, 2017)
Have you ever interacted with a cashier, gardener, nail salon employee, call center worker, home health aide, parking attendant, or restaurant server? If so, chances are the person who provided you that service was an undocumented worker.
Wells Fargo. Bio-Rad. Volkswagen. Just three examples of corporations that, to their peril, either ignored or actively suppressed employee whistleblowers. They join countless other companies, large and small, that found out the hard way that a head-in-the-sand approach toward whistleblowers is not just unethical, but also poses grave threats to their bottom lines and public reputations.
Last month, a federal jury in San Francisco awarded $8 million to a former general counsel for life sciences company Bio-Rad who was terminated after raising concerns about possible Foreign Corrupt Practices Act (FCPA) violations by his employer. The verdict sent shockwaves through the legal community as it redefines the boundaries of general counsel privilege, and may spur others to act as whistleblowers themselves.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
The Securities and Exchange Commission is showing its commitment to keeping the lines of communication open between the SEC and whistleblowers willing to report wrongdoing. The SEC recently announced stiff penalties for two companies that included language in separation agreements that required employees to waive financial rewards they might be eligible for if they disclose employer wrongdoing to the SEC.
News that Wells Fargo opened more than two million unauthorized deposit and credit card accounts has filled the headlines over the past few months. While there is no question that the customers were harmed by the bank's unlawful sales practices, other victims have had their lives and livelihoods turned upside down in the scandal - innocent Wells Fargo workers who claim the bank used regulatory filings and other tactics as retaliation, jeopardizing their careers.
Stories of corporate greed, cover-ups, and corruption make headlines nearly every day. Scandals at Enron, AIG, Madoff Securities, and elsewhere rocked the investment world to the point that we almost take such violations in stride. What we shouldn't take for granted, however, is the critical role of the courageous whistleblower who exposes the wrongdoing, often at great personal risk.
When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") in 2010, it included new protections for whistleblowers who spoke up about securities laws violations. Despite Congress's clear intent to shield whistleblowers from retaliation, courts have been divided over just who qualifies as a "whistleblower."