The U.S. Commodity Futures Trading Commission (“CFTC” or the “Commission”) has proposed numerous amendments to the Whistleblower Rules found in Part 165 of the CFTC’s Regulations. The Commission seeks to enhance the process for reviewing whistleblower claims and clarify staff authority to administer the whistleblower program through the proposed amendments. Significantly, the CFTC has proposed regulations that would give it authority to take enforcement action for whistleblower retaliation and prohibit confidentiality and pre-dispute arbitration clauses in employment contracts that deter employees from reporting violations to the CFTC.
Esther Pak
OSHA Launches “Expedited Case Processing Pilot” For Whistleblower Claims
On August 1, 2016, the U.S. Department of Labor (DOL) launched a new pilot program, titled “Expedited Case Processing Pilot,” in its Western region. Here is the DOL’s press release describing the program. The program enables a complainant filing claims under whistleblower statutes to ask OSHA to cease its investigation and issue findings in an expedited fashion.
SEC Continues To Scrutinize Separation Agreements
On August 16, 2016, the SEC announced that Health Net Inc. (Company) agreed to pay a $340,000 penalty to settle charges that it violated Rule 21F-17 by using severance agreements that allegedly prohibited its employees from receiving whistleblower awards from the SEC.
Wisconsin District Court Follows 5th Circuit: Internal Tipsters Are Not Considered “Whistleblowers” Under Dodd-Frank
On August 12, 2016, the U.S. District Court for the Eastern District of Wisconsin in Lamb v. Rockwell Automation Inc., No. 15-CV-1415-JPS (E.D. Wis. Aug. 12, 2016) held that the Dodd-Frank whistleblower protection provision (Section 922) only protects individuals who provide information to the SEC. In so holding, the court adopted the Fifth Circuit’s holding in Asadi v. F.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013) and rejected the SEC’s regulatory guidance and the Second Circuit’s holding in Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2d Cir. 2015).