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Can A Confidentiality Agreement Prohibit Me From Whistleblowing Against The Company That I Work For? I Need A Lawyer!

On Behalf of | Oct 2, 2015 | Whistleblower Claims, Wrongful Termination |

Best Ohio Whistleblower Attorney Answer: Can an employer contract around whistleblower laws? Can my employer force me out after I report securities violations? How do I pursue a whistleblower claim under Sarbanes-Oxley?

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As our employment law attorneys recently blogged about whistleblowing, the Sarbanes-Oxley Act, shields employees of publicly-traded companies from retaliation for the reporting of fraud and other violations of U.S. Securities and Exchange Commission (“SEC”) rules and regulations. These whistleblower protections prohibit employers from firing, demoting, threatening, harassing, or otherwise discriminating against any employee who reports qualifying misconduct.

The more recent Dodd-Frank Act, which applies to both public and privately held companies, similarly prohibits an employer from retaliating against an employee who discloses any information protected or required under Sarbanes-Oxley; the Securities Exchange Act of 1934; and any other law, rule or regulation subject to the jurisdiction of the SEC. Dodd-Frank also protects employees who report truthful information related to federal crimes. Aggrieved employees who prevail under Dodd-Frank can receive double the amount of wages lost due to retaliation, as well as attorneys’ fees. Further, Dodd-Frank entitles some whistleblowers to receive awards from 10 percent to 30 percent of amounts the SEC recovers based on the whistleblower’s reporting.

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To establish a prima facie whistleblower case under Sarbanes-Oxley or Dodd-Frank, an employee must demonstrate that (1) she engaged in a legally protected activity (reporting fraud, securities violations, etc.); (2) the employer knew that she engaged in such conduct; (3) she suffered an adverse employment action(terminated, demoted, disciplined, etc.); and (4) the protected activity was a contributing factor in the adverse employment action. An employee engages in legally protected conduct when she undertakes any lawful act that provides information to a company supervisor regarding conduct that the employee “reasonably believes” constitutes fraud or SEC violations.

The first element of a whistleblower claim under Sarbanes-Oxley requires an employer to have reported her employer’s violation. What is an employer to do, though, if she witnesses fraud but has signed a confidentiality agreement with her employer? As our employment lawyers also recently blogged about, the SEC recently made clear that it will go after companies that force confidentiality agreements upon employees in an attempt to muzzle whistleblower complaints.

The SEC charged Houston tech firm KBR, Inc. with violating SEC Rule 21F-17. KBR required employees who were witnesses in internal investigations to sign confidentiality agreements. The confidentiality agreements stated that employees who violated the agreements, and spoke with outside investigators, without approval from KBR’s legal department could be disciplined, up to and including termination. Because the investigations at issue involved possible securities violations, the SEC found that the agreements violated Dodd-Frank’s whistleblower provisions. Specifically, the SEC determined that because the confidentiality agreements threatened adverse employment action if the employees disclosed information related to the investigation to outside persons, the agreements violated Rule 21F-17.

Simply put, a company cannot conduct an internal investigation into securities violations and then foist confidentiality agreements upon investigation participants that prohibit the participants from reporting the violations. Allowing a company to do this would strip Sarbanes-Oxley and Dodd-Frank of a substantial amount of force.

Ohio law provides job protections to those employees that report or oppose illegal or unsafe conduct or work conditions, such as OSHA violations, embezzlement, unlawful discrimination, or patient abuse, to name a few. However, in order to have the protections under the law, there are a lot of steps that each employee must take. That is why it is absolutely critical for any employee confronted with illegal or unsafe conduct or work conditions at work to immediately consult with employment law lawyers in order to make sure that everything is done right. If you wait until you are fired, you may have already lost your claim. Do not wait. If you have seen any illegal or dangerous conduct on your job, then the best thing you can do is call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting Ohio employees from retaliation after blowing the whistle on unlawful and hazardous activities at work.


The materials available at the top of this whistle blower claims page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “what should I do if I am being harassed for reporting…”, “how do I …?”, “Am I …?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to particular whistleblower claims questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz, or any individual attorney.

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