Whistle-Blowers, Be Careful Who You Tell…

On Wednesday, February 21^st, 2018, the United States Supreme Court issued an opinion in a whistle-blower case, Digital Realty Trust v. Somers, that makes it vitally important for an employee who intends to report wrongdoing to do so exactly as a statute states it should be done.

The case involved a provision of the Dodd-Frank Act. The statute said an employee could not be fired in retaliation for reporting a securities law violation to the Federal Securities and Exchange Commission (SEC). Mr. Somers made the fatal mistake of reporting a violation of law to his superiors and he was fired. The United States Supreme Court held that Mr. Somers was required to follow the law exactly and report the illegality to the SEC, rather than his superiors. Therefore, Mr. Somers will get nothing. This decision will not further the legislative intent of providing a safe harbor to those brave enough to come forward and report a crime.

Texas and other states have similar laws that require whistle-blowers to report illegal activity to a law enforcement agency rather than someone in their chain of command within the organization.

The lesson to be learned is that whistle-blowers should seek legal advice before reporting illegal activity. Only a lawyer will be able to give you the legal advice necessary to comply exactly with whatever law may exist to protect you from a retaliatory firing.

Common sense tells me that the instinct of most employees is to report wrongdoing within the chain of command and most companies require this as part of their policy, but you do so at your own peril.