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ARTICLE · 13 NOVEMBER 2014

Do Not Attempt To Interfere With Potential Whistleblowing, SEC Warns

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The Dodd-Frank Act expressly prohibits employers from punishing an employee for engaging in protected whistleblowing activity.

CanadaCorporate/Commercial Law
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Earlier in 2014, Sean McKessy, Chief of the Office of the Whistleblower of the United States Securities and Exchange Commission (the "SEC" or "Commission"), warned lawyers against using private contracts such as employment agreements to discourage potential whistleblowers from reporting alleged corporate misconduct to the SEC and other regulators. In particular, McKessy's comments cautioned against drafting and enforcing confidentiality agreements, separation agreements and employment agreements that condition eligibility for certain benefits or payments on not reporting company activities to regulators.

Those Canadian companies which are under the jurisdiction of U.S. securities law, and thus subject to the SEC's regulatory oversight, must be careful when drafting and enforcing confidentiality agreements and other similar restrictive covenants in their agreements.

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