No Protection for CFO Whistleblower Says Supreme Court; Basics of Whistleblower Protection

Today the Supreme Court rejected an appeal by an ex-CFO many thought would be the first whistleblower protected under the Sarbanes-Oxley Act. While statistics indicate that employers have an almost insurmountable likelihood of winning Sarbanes-Oxley whistleblower cases, businesses are obligated to comply with a wide variety of whistleblower protections. Increased need to lay off workers calls for greater care in avoiding retaliation against a whistleblower.

Though newer Ponzi schemes and casino style investment banking have pushed the shenanigans at Enron into memory, the legislation passed in Enron's wake (the Sarbanes-Oxley Act) was meant to reign in duplicitous accounting practices and financial reporting. Under the Act, whistleblowers who report violation are to be protected against retaliation from their employer.

As CFO magazine reported in 2007, David Welch's case was the first Sarbanes-Oxley whistleblower case to make it all the way through the federal whistleblower claim process. He had been CFO at Cardinal Bankshares Corp. Fired in 2002 after reporting violations of Generally Accepted Accounting Principles (GAAP) as well as internal controls weaknesses, Welch won at the administrative law judge stage. As reported by the AP, this decision was later reversed by the Department of Labor's review panel, whose opinion was upheld all the way up the chain to today's Supreme Court ruling.

Though many doubt how well whistleblower protections work those reporting shady accounting, whistleblower protection in general is something all businesses should understand, particularly in a climate of layoffs.

Employees who report violations of law by their employer are guarded by various whistleblower protections at both the federal and state level.

In addition to the Sarbanes-Oxley Act, federal laws that include protections for employees who report violations include the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Energy Reorganization Act, the Safe Drinking Water Act, the Solid Waste Disposal Act, the Toxic Substance Control Act, and the Water Pollution Control Act, amongst others.

If an employee has a good faith belief that their employer has violated one of these laws, has reported it either internally or to a federal agency, and receives retaliation from the employer, they can file a claim through the Department of Labor’s (DoL) Occupations Safety and Health Administration (OSHA) complaint process.

Most states protect whistleblowers through common law prohibition against retaliation for reporting believed law breaking by their employer. As with federal protections, employees who complain internally or to outside agencies are meant to be protected.

Examples given by OSHA of discrimination/retaliation include:

• Firing or laying off;
• Blacklisting;
• Demoting;
• Denying overtime or promotion;
• Disciplining;
• Denial of benefits;
• Failure to hire or rehire;
• Intimidation;
• Reassignment affecting prospects for promotion; and
• Reducing pay or hours.

• The Whistleblower Protection Program (OSHA)
• Feds Fumble Whistleblower Protection (CFO Blog)
• Punishing Whistleblowers Can Lead to Trouble (FindLaw)
• Securities Law: An Overview (FindLaw)
• Wrongful Discharge (provided by Hanan M. Isaacs)