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Changing the Rules of the Game After the Whistle Has Blown
What do Edward Snowden, J. Scott Bechtel, Jeffrey Wiest and Dr. Naiel Nassar have in common? At first glance, not much. Mr. Snowden is an accused traitor who (now) lives in Moscow; Messrs. Bechtel, Wiest and Nassar appear to be law-abiding citizens resident in the U.S. Despite their differences, though, all four men have recently been the subject of the same important question: Are they whistleblowers deserving of protection from retaliation?
Although Mr. Snowden's story may make for a better page-turner, the stories of the others ' all plaintiffs in retaliation lawsuits ' are more likely to impact the daily operations of American employers. In 2002 Congress enacted the Sarbanes-Oxley Act (SOX) “[t]o protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws, and for other purposes.” Since then, courts have struggled to agree upon who qualifies for whistleblower protection under Section 806 of the Act, 18 U.S.C. ' 1514A, and what the parties' respective burdens of proof are in litigation. Adding to the uncertainty, in 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in the wake of the Great Recession. Among many other provisions, Dodd-Frank beefed up the whistleblower protection provisions of SOX.
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