Last week, the U.S. Securities and Exchange Commission reached at $265,000 settlement with BlueLinx Holdings Inc. The SEC alleged that BlueLinx violated federal securities law by using severance agreements that required outgoing employees to waive their rights to SEC whistleblower awards. As we previously reported here, the SEC has taken action against other employment agreements that arguably impair whistleblowing activity in the past.
On October 29, 2015, the Department of Defense (DOD) added two new clauses to the Defense Federal Acquisition Regulation Supplement (DFARS), which raise the potential for liability under the False Claims Act. The new clauses, DFARS 252.203-7996 and 252.203-7997, were added to comply with the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, div. E, tit. VII, § 743 (2014), and subsequent appropriations acts, which prohibit the use of appropriated funds for federal government contracts with businesses that restrict employee whistleblowing to authorities.
Posted by Kristin Graham Koehler and Brian P. Morrissey
Last week, a federal district court addressed a question that often arises in False Claims Act litigation: Can a qui tam relator who files suit against his employer be compelled to return company documents that he possesses in violation of company policy or a confidentiality agreement? In Shmushkovich v. Home Bound Healthcare, Inc., No. 12-C-2924 (N.D. Ill. June 23, 2015), the district court held that the relator was not required to return such documents, so long as they were relevant to his claims.
The Securities and Exchange Commission made good on its promise to crack down on employment-related agreements that it believes improperly restrict protected whistleblowing. The agency broke new ground yesterday, when it issued a cease-and-desist order against a company for using confidentiality agreements with allegedly “improperly restrictive language” that could potentially stifle the whistleblower process. This is a first-of-its-kind enforcement action by the SEC, as it was based solely on the language of the confidentiality agreement. In fact, the SEC specifically stated in its order that it was unaware of any instance in which the agreement had prevented any employee from communicating with the SEC, or in which the company had enforced the agreement against any employee.
According to the order, KBR, Inc., a Houston-based global technology and engineering firm, used the confidentiality agreement in connection with internal investigations. When KBR received a complaint or allegation from an employee about potentially illegal or unethical conduct by KBR or its employees, KBR required employees interviewed as part of its internal investigation of the complaint or allegation (including the employee or employees who originally lodged the complaint or allegation) to sign the confidentiality agreement. The confidentiality agreement provided that:
I understand that in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview, without the prior authorization of the Law Department. I understand that the unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment.
The SEC charged KBR with violating Rule 21F-17, a whistleblower protection rule enacted under the Dodd-Frank Act, by requiring employees to sign the confidentiality agreement in internal investigations. That rule prohibits a company from “tak[ing] any action to impede an individual from communicating directly with the [SEC] about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.”
Without admitting or denying the charges, KBR consented to entry of the cease-and-desist order. The order states that KBR has amended its confidentiality agreement to say that it does not prohibit employees from reporting possible violations of federal law or regulation to any governmental agency or entity, without prior authorization. KBR also agreed to pay a civil money penalty of $130,000 to the SEC.
This is a significant action by the SEC, further signaling its intent to crack down on agreements that could be construed as restricting whistleblowing behavior. This crackdown comes on the heels of actions by the EEOC and NLRB challenging confidentiality and non-disparagement provisions in severance agreements that, according to the government entities, improperly prohibit employees from engaging in protected activities.
In light of these actions, entities should review their agreements with employees that contain confidentiality and non-disparagement provisions. Government entities are making clear that they intend to crack down on provisions that they deem to restrict or prohibited protected activity – including whistleblowing and certain other communications or cooperation with government agencies. As a result, entities should ensure that the confidentiality and non-disparagement provisions in their agreements with employees contain appropriate carve-outs for protected activity.