Are All Whistleblowers Protected from Retaliation?

Recent reports and court cases seem to be surfacing regarding whistleblowers. There has been confusion and misconceptions surrounding the idea of protection for those that file claims against their own companies. Exactly what level of protection is afforded when these individuals speak up can be difficult to discern.

Originally passed in 2010 by the Obama Administration, the Dodd-Frank Act is a comprehensive piece of literature that directly applies to the security of whistleblowers. Coming in at close to 2,500 pages, it's clear to see why there may be some confusion as courts and employers seek to determine when whistleblowers are protected from retaliation and when they are not.

The initial wording of the Dodd-Frank Act led people to believe that in order to receive protection, a whistleblower first had to report information to the Securities and Exchange Commission (S.E.C.). Now it appears that the S.E.C. is no longer claiming this to be true. In an effort to persuade employees to speak up about misconduct, the S.E.C. has since increased their measures of protection.

Congress & the S.E.C. Are on Two Different Pages

The fact that Congress and the S.E.C. cannot agree is only complicating matters further. The law specifically includes reporting to the S.E.C. as a qualifier for all whistleblowers, regardless of what they are reporting.

The S.E.C. has recently spoken up and said that the Dodd-Frank Act is actually saying something different than what was previously interpreted. They are now saying that simply submitting a report to the company's audit agency is enough to qualify for anti-retaliation protection.

So which is it? Does a whistleblower have to go directly to the S.E.C., or is it enough to report the incident internally? Clearly employers favor the former option, because the less protection afforded to whistleblowers, the better (at least in the eyes of a corporation). After all, the last thing employers want is to have their dirty laundry aired for all to see while still employing the individual who aired it.

Courts Need to Make up Their Minds

The longer this issue drags on, the more muddled will likely become. It is crucial for courts to pick their side of the fence and stay there. Not only does the Dodd-Frank Act have implications for an employee's position, it also determines their rights when they do "blow the whistle," so to speak.

The Sarbanes-Oxley Act is essentially contrary to the Dodd-Frank Act. Its stipulations are much more stringent and less geared to the good of the employee. Whistleblowers would benefit immensely if courts held to what is detailed in the Dodd-Frank Act, rather than the Sarbanes-Oxley Act.

The bottom line seems to be that the courts need to agree or Congress needs to amend the law once and for all, preferably in a way that all sides interpret consistently.

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