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Extraterritoriality and Whistleblower Retaliation
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? An answer one way or the other may render meaningless arguments about, for example, whether an employee's conduct should be deemed protected or the appropriate causation standard to be applied. Indeed, understanding the extraterritoriality issues in international whistleblower cases is absolutely critical insofar as it may provide an avenue for defense counsel to seek a dismissal early in litigation.
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