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Dodd-Frank Wall Street Reform And Consumer Protection Act (Part I)

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("WSRCPA"). This post is the first in a five-part series on the employment law provisions of the WSRCPA. This post examines Section 748 of the WSRCPA, which amends the Commodity Exchange Act by providing a financial award for whistleblowers and protecting them from retaliation. Whistleblower award. Section 748 provides an award for whistleblowers who voluntarily provide original information to the Commodities Future Trading Commission ("Commission") that leads to the successful enforcement of an action brought by the Commission and results in monetary sanctions of more than $1,000,000.  The amount of the award to the whistleblower will range between 10% and 30% of the monetary sanctions collected by the Commission. The award is not available to, among others, a person convicted of a crime related to the unlawful action made the basis of the whistleblower report, employees of an appropriate regulatory agency, futures association, the Department of Justice or other law enforcement organization.  An applicant for an award has 30 days to appeal a determination made by the Commission, and the appeal must be filed in the appropriate court of appeals of the United States. There is also a confidentiality provision in Section 748 designed to protect the identity of the whistleblower during the investigation. Anti-Retaliation Provision. No employer may threaten, harass, discriminate against or discharge a whistleblower for having provided information to the Commission or for assisting in an investigation or proceeding initiated by the Commission related to such information.  An aggrieved whistleblower must file a lawsuit in federal district court within two years of the wrongful act (although federal employees must follow a separate administrative procedure).  The remedies available to a prevailing whistleblower include reinstatement with bridged seniority, back pay and interest, and any other special damages, including attorney's fees, costs and expert witness fees.   Two other provisions are of note.  One makes pre-dispute arbitration agreements covering such claims unenforceable.  Another provision prevents the preemption of other claims the whistleblower has under state or federal law. The takeaway. The confluence of a potential financial award plus protection against retaliation should help loosen fear's grip on those reluctant to reveal incriminating information, though I suspect the $1,000,000 requirement will make the award something better known in the promise than reality.  GSF

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