Whistleblower Law Blog
The Employment Law Group® Law Firm is Quoted in BNA Article on New Dodd-Frank Act
Principal Jason Zuckerman of The Employment Law Group® law firm is quoted in an article in BNA’s Daily Labor Report titled “Attorneys Agree Financial Overhaul Bill Has Vigorous Whistleblower Protections” about the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Dodd-Frank Act which we blogged about here, contains new incentives and protections for employees, amends the whistleblower protection provision of the Sarbanes-Oxley Act (SOX), and clarifies the anti-retaliation provision of the False Claims Act (FCA).
Section 1057 of the act creates a new private right of action for employees of the financial services industry who suffer retaliation for disclosing information about fraudulent or unlawful conduct related to the offering of a consumer financial product or service. Zuckerman stated that ‘‘[this section] is especially significant because of its broad scope—it covers almost any employee working in the financial services industry related to the extension of credit, including employees of privately held companies.’’ Additionally, these claims are exempt from mandatory arbitration agreements and this section imposes an employee-friendly burden-shifting framework. Upon the employee meeting his or her burden by a mere preponderance of evidence, the employer must prove by clear and convincing evidence that it would have taken the same adverse action in the absence of the employee’s protected conduct.
Section 922 creates another private right of action for employees who suffer retaliation in response to whistleblowing to the Securities and Exchange Commission, granting SOX whistleblowers an avenue to by-pass the SOX administrative complaint process and go straight to federal court. Zuckerman pointed out that section 929A clarifies that SOX applies to subsidiaries of publicly traded companies—thereby eliminating a “significant” loophole.
Section 1079B strengthens the anti-retaliation provision of the False Claims Act by extending protection to the “associated others” of the whistleblower, and also clarified that the statute of limitation for FCA claims is three years. According to Zuckerman, ‘‘this provides important clarity for claims under Section 3730(h) of the FCA because under prior U.S. Supreme Court precedent, the limitations period ranged from as little as three months to five or six years.’’