Deciding whether a U.S. whistleblower protection law applies to actions that occurred overseas is a two-step process: First, check the text of the statute. If there is no language on extraterritoriality, the outcome will depend on (a) the facts of the case; (b) the nexus with the U.S.; and (c) the purpose of the statute being invoked.
This article by TELG managing principal R. Scott Oswald and TELG principal Tom Harrington was published by The Corporate Counselor on October 1, 2014. The full article is available as a PDF on our site and at The Corporate Counselor. (Site requires paid subscription.)
The article also was published by Employment Law Strategist (Site requires paid subscription.) on November 25, 2014.
Extraterritoriality And Whistleblower Retaliation: Crossing the Line
Though whistleblower protection statutes take many forms, the frameworks for determining liability are really quite similar. Generally speaking, an employee must first demonstrate that he or she engaged in protected conduct under an act. Next, the employee may be required to prove that the employer actually
knew about the employee’s protected conduct. Third, the employer must take some sort of adverse personnel action against the employee. Finally, the employee must demonstrate that his or her protected conduct was causally related to the adverse employment action.
In-house counsel for multinational corporations and counsel for foreign plaintiffs often must deal with an even more preliminary issue than any of those cited above. Specifically, can overseas whistleblowers avail themselves of United States whistleblower protection laws? If so, under what circumstances? How can corporations protect themselves against claims of retaliation from company whistleblowers located outside the United States?