The Whistleblower Augmented Reward and Nonretaliation Act of 2016, with the confusing alternative title of the WARN Act of 2016, has been introduced before the House of Representatives.
The proposed legislation would amend the Exchange Act to provide an employer may not take any action to impede an individual who is about to or has assisted or engaged in activity protected by the Act, including:
- issuing, proposing, initiating, enforcing, or threatening to enforce, a confidentiality agreement with respect to such communications;
- initiating, enforcing, or threatening to enforce, any agreement, policy, form, or condition of employment, including by any predispute arbitration agreement, that waives the rights and remedies provided for in certain provisions of the Act;
- requiring an individual to waive, release, or assign any monetary award such individual may receive from the SEC, or conditioning an individual’s right to receive any contractual or employment-related benefit on such a waiver, release, or assignment;
- requiring an individual to disclose to any private party whether such individual has, or in the future intends to, communicate with the Commission staff about a possible commodities law violation;
- conditioning an individual’s right to receive any contractual or employment-related benefit on a representation that such individual has not communicated with, or provided documents or other information, to the Commission staff;
- seeking civil or criminal liability for acquiring and communicating information to the Commission or other activity protected by certain provisions of the Act;
- seeking professional discipline through loss of license, certification, or other disciplinary activities for engaging in activity protected by the Act;
- seeking professional discipline of attorneys for representation of activities protected by the Act, or other action that obstructs the whistleblower’s right to counsel; or
- engaging in any other discrimination that would chill the exercise of activity protected by certain provisions of the Act.
The Act also requires the Commission to issue regulations requiring each employer:
- to have a procedure in place for an employee or former employee to report directly to the chief executive officer, a representative appointed by and reporting directly to the chief executive officer who is specifically designated to receive such a report, or through a hotline consistent with professional best practices to the audit committee of the board of directors, if such employee or former employee believes that violations of certain provisions of the Act have occurred or are occurring at the place of employment or place of former employment; and
- to not discriminate against an employee or former employee for such reports.
The Act also provides for whistleblower awards under the Financial Institutions Anti-Fraud Enforcement Act and the Federal Deposit Insurance Act.