On July 22, 2015, the Senate unanimously passed a bill that aims to protect whistleblowing employees who report antitrust violations from retaliation by their employers. The Criminal Antitrust Anti-Retaliation Act of 2015 would prohibit employers from retaliating against an employee, contractor, subcontractor, or agent who provides information regarding possible violations of criminal antitrust law to either the employer or the Department of Justice. An employee need only “reasonably believe” that a violation of law has occurred. The Act would also protect employees who participate in investigations or proceedings relating to antitrust laws. Employees who planned or initiated the antitrust violation would not be covered by this legislation.
Under the proposed legislation, an employee who is terminated or otherwise discriminated against may file a complaint with the Department of Labor within 180 days of any retaliatory action. An employee who is found to be wrongfully terminated or discriminated against may be awarded reinstatement, back pay, and compensation for litigation costs and attorney fees.
The bill was reintroduced by Senators Charles Grassley and Patrick Leahy, members of the Senate Judiciary Committee, on June 17, 2015. A similar bill was passed unanimously by the Senate in the last Congress but was not taken up by the House at that time. This bill has not yet been taken up by the House
Discussing the bill, Grassley stated, “Legislation like this provides protection from retaliation for private sector employees who are willing to come forward with information about criminal antitrust violations. It also can be a real deterrent to those who are thinking about committing fraud in the future.”
Grassley suggested that the bill is intended to amend the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, which currently provides immunity from criminal prosecution for corporations that are the first to self-report antitrust violations to the DOJ Antitrust Division and are accepted into the Antitrust Division’s Corporate Leniency Program, to expand protection to “innocent third-parties who blow the whistle on criminal antitrust activity.” The proposed amendment –if enacted – may present some hurdles for in-house counsel, as in-house counsel may need to consider the possibility that a whistleblower may directly escalate a report of potential wrongdoing to DOJ before the company has a chance to self-report. Corporations already face a short timeframe for determining whether to apply for leniency under current legislation, and they may be forced to make even quicker decisions if this Act is passed.