Some
federal courts have ruled that Whistleblowers are not protected from
retaliation if they only make an internal report to their employer, rather than
one to the SEC. And a state district
court recently ruled that a post-employment whistleblower’s submission to the
SEC is subject to civil discovery even though there was no whistleblower
retaliation claim pending.
Contrary
to the CFR and case law, the state court explicitly stated the whistleblower’s
submission as a former employee is “too late” for whistleblower protections. This, of course, actually encourages every
employer to sue their former employees to gain knowledge and access to
confidential submissions, even when the former employee isn’t claiming a retaliation
discharge (because the employer didn’t even know about the submission prior to
termination.)[1]
The problem with this logic is that any such retaliation claim must be brought
in federal court. Moreover, federal
regulations prohibit any type of harassment of or interference with even a
former employee whistleblower. If having
to share every confidential tip and follow-up communication with the SEC with the
subject of the tip isn’t interference, what is?
Food for thought.
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