In a Law360 article (subscription required), Steven J. Pearlman, co-head of Proskauer’s Whistleblower & Retaliation Group, commented on a “troubling” ruling recently rendered by the Merit Systems Protection Board (“MSPB”) in Day v. Department of Homeland Security, No. DC-1221-12-0528-W-1 (June 26, 2013). In that decision, the MSPB gave retroactive effect to the broadened definition of “protected disclosure” under the Whistleblower Protection Enhancement Act of 2012, which affords increased protections to federal employees claiming retaliation.
“This is part of this sweeping tide that we’re seeing. Whistleblower claims are white-hot. They’re everywhere and the risks are increasing,” Pearlman said. “I think what we’re seeing in the Day decision is quite consistent with the trend that we’ve seen under the Sarbanes-Oxley Act and Dodd-Frank, in terms of liberalizing the scope and contours of protected activity.”
Despite this trend, Pearlman tempered that the MSPB’s “ruling will invigorate whistleblowers who work for the government, [but] it won’t have an impact in the private sector.” Although “[o]pportunistic plaintiffs’ lawyers might try to cite the MSPB’s [ ] ruling to help bolster their position in whistleblower cases against private employers,” Pearlman concluded that “those efforts won’t bear fruit.”