Whistleblower Watch

Whistleblower Watch

Reports and Analysis of Developments in Whistleblower Law

Tag Archives: Confidentiality

DoD Prohibits FY17 Funds For Contractors with Restrictive Confidentiality Agreements

Posted in Department of Defense
On November 14, 2016, the Department of Defense issued a class deviation prohibiting DoD agencies from awarding FY 2017 funds to companies that require employ­ees or subcontractors to sign internal confiden­tiality agreements or statements that restrict them from lawfully reporting waste, fraud, or abuse. As described here, the deviation comes at a time of increased… Continue Reading

2015 SEC Whistleblower Report Highlights Successes and Trends

Posted in Dodd-Frank Act (Dodd-Frank), Securities & Exchange Commission (SEC)
In November, the Securities and Exchange Commission issued its 2015 annual report to Congress on the agency’s Dodd-Frank Whistleblower Program. The report notes an increased number of tips made by whistleblowers to the SEC — up 8% from last year and 30% since 2012.  The statistics in the report also provide an interesting profile of… Continue Reading

D.C. Circuit Affirms (Again) Sanctity of Privileged Internal Investigations of Whistleblower Claims

Posted in False Claims Act (FCA), Internal Investigations
Employers hoping to assert privilege over documents created in internal investigations are breathing a sigh of relief in the wake of the D.C. Circuit’s second decision in In re: Kellogg Brown & Root, Inc. The D.C. Circuit granted KBR’s request for a writ of mandamus on attorney-client privilege grounds to prevent a whistleblower from obtaining… Continue Reading

“Watch List” Update: New Jersey Whistleblowers Can Be Prosecuted for Taking Documents

Posted in State Whistleblower Laws, Whistleblower Retaliation
On Tuesday, the New Jersey Supreme Court issued its decision in State v. Saavedra, holding that a whistleblower can face criminal charges for taking sensitive documents from her employer to support her discrimination and retaliation lawsuit. As we have discussed before, Ivonne Saavedra, a former North Bergen Board of Education employee, took hundreds of confidential… Continue Reading

New Article Addressing Federal Agency Attacks on Confidentiality Policies and Agreements

Posted in Dodd-Frank Act (Dodd-Frank), Internal Investigations, Securities & Exchange Commission (SEC), Whistleblower Retaliation
Crowell attorneys Tom Gies and Chris Calsyn authored an article for Crowell’s Mining Law Monitor discussing the recent spate of government agency attacks on standard employer confidentiality policies and agreements.  The SEC in particular claims that such policies and agreements may impermissibly stifle putative whistleblowers from reporting their concerns to appropriate government agencies.  The article… Continue Reading

April 16 Webinar: The SEC Challenges Employer Confidentiality Protections

Posted in Dodd-Frank Act (Dodd-Frank), Events, Sarbanes-Oxley Act (SOX), Securities & Exchange Commission (SEC)
Please join us on Thursday, April 16 at 12 p.m. Eastern for the Crowell & Moring Labor & Employment group’s monthly “Third Thursday” webinar.  This month’s topic is the SEC’s recent scrutiny of employer confidentiality protections.  Our panel will include Tom Gies and Chris Calsyn of the Firm’s Labor & Employment group, as well as Dan… Continue Reading

State Department OIG Issues Report on the Use of Confidentiality Agreements

Posted in Whistleblower Retaliation
On March 30, 2015, the Office of the Inspector General for the State Department issued a report on the use of confidentiality agreements by the thirty highest-grossing State Department contractors.  While none of the companies had policies that were “overly restrictive,” the OIG found that that 13 of the contractors had policies that contained provisions… Continue Reading

SEC Claims Employer’s Confidentiality Agreement Muzzles Whistleblowers; Orders Change to Agreement and $130,000 Fine

Posted in Internal Investigations, Securities & Exchange Commission (SEC), Whistleblower Retaliation
The SEC issued a cease and desist order to KBR, Inc. this week requiring the company to revise the confidentiality agreement it insists witnesses sign during internal investigations. The SEC also imposed a $130,000 fine. This announcement comes on the heels of a recent report that the SEC is scrutinizing non-disclosure, confidentiality and other agreements to determine… Continue Reading

Update: Fifth Circuit Rejects En Banc Rehearing of Halliburton Decision

Posted in Department of Labor (DOL), Internal Investigations, Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
On March 11, 2015, the Fifth Circuit voted 8-7 against rehearing en banc the court’s November decision in Halliburton Co. v. Administrative Review Board. Three Fifth Circuit judges wrote a dissenting opinion, contending that the court should have heard the appeal en banc in order to provide greater clarification and guidance on what types of… Continue Reading

SEC Ramps Up Dodd-Frank Enforcement by Scrutinizing Employer Confidentiality Restrictions and Financial Award Waivers

Posted in Securities & Exchange Commission (SEC)
As recently reported in the Wall Street Journal (subscription required), the SEC has sent information requests to several publicly-traded companies.  The letters demand production of the firms’ non-disclosure agreements, employment agreements, severance and release agreements, and other related documents.  The requests allegedly also seek copies of any other documents that attempt to restrict the ability… Continue Reading

D.P.A.P. Issues Class Deviation: No Money For Defense Contractors With Certain Confidentiality Agreements

Posted in Internal Investigations
Defense contractors must take heed of a new provision affecting the confidentiality agreements they likely demand employees sign as a condition of employment. According to Class Deviation 2015-O0010, issued by the Defense Procurement and Acquisition Policy (DPAP) office on February 5, 2015, effective immediately, no funds appropriated for fiscal year 2015 may be paid to… Continue Reading

President’s Budget Would Extend Protections to IRS Employees

Posted in Internal Revenue Service (IRS)
The Department of Treasury recently issued its General Explanation of the Administration’s Fiscal Year 2016 Revenue Proposals. On pages 250-51, there is a proposal to “Improve the Whistleblower Program.” The proposal would operate in two parts. First, Section 7623 of the Internal Revenue Code would be amended to explicitly protect whistleblowers from retaliatory actions by… Continue Reading

Supreme Court Affirms Protections For DHS Whistleblowers

Posted in Whistleblower Retaliation
Earlier today the Supreme Court extended whistleblower protection to a former air marshal who exposed the Transportation Safety Administration’s plans to cut back on undercover marshals on overnight flights. In Dep’t of Homeland Security v. MacLean, the Court affirmed the Federal Circuit’s decision granting protection to Robert MacLean under 5 U.S.C. § 2302(b)(8)(A), which prohibits… Continue Reading

Disclosure of Whistleblower’s Name, Alone, May Be Adverse Employment Action

Posted in Department of Labor (DOL), Internal Investigations, Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
The Fifth Circuit recently affirmed that identifying a complaining employee while requesting that employees preserve documents for an SEC investigation was a “materially adverse” action under the anti-retaliation provisions of the Sarbanes-Oxley Act. The issue in Halliburton, Inc. v. Administrative Review Board, U.S. Dep’t of Labor arose when Halliburton employee Anthony Menendez made a confidential… Continue Reading