Keeping Whistleblowers Quiet: Addressing Employer Agreements To Discourage Whistleblowing

Comment by Kathryn Hastings

As part of the Dodd-Frank Wall Street Reform and Protection Act (Dodd-Frank), the United States Congress created a whistleblower program whereby those who provide original information of potential violations of securities law to the United States Securities and Exchange Commission (SEC) are eligible to receive large bounty awards if the information results in a successful action. Following the enactment of the rules governing the whistleblower program, however, some companies appeared to be circumventing the program’s prohibition on impeding employees’ communication with the SEC by requiring employees to sign restrictive agreements. This year, the SEC brought its first “pretaliation” enforcement action against KBR, Incorporated (KBR), based on an agreement the company utilized in the course of internal investigations, but provided little guidance for drafting acceptable agreements. This Comment utilizes the KBR matter as a case study to examine the policy considerations underlying the Dodd-Frank whistleblower program requirements and suggests means by which the SEC can use the enforcement process in the future to provide additional guidance while balancing the competing interests of potential whistleblowers and companies alike desiring to encourage internal reporting and protect confidential information.


90 Tul. L. Rev. 495 (2015)