The CFTC has adopted final amendments to its whistleblower rules that will, among other things, strengthen the CFTC’s anti-retaliation protections for whistleblowers and enhance the process for reviewing whistleblower claims.
Based on a reinterpretation of the CFTC’s anti-retaliation authority under the Commodity Exchange Act (CEA), the CFTC or the whistleblower may now bring an action against an employer for retaliation against a whistleblower. The amendments also prohibit employers from taking steps to impede a would-be whistleblower from communicating directly with CFTC staff about a possible violation of the CEA by using a confidentiality, pre-dispute arbitration or similar agreement.
Specifically, the amendments make the following key changes or clarifications:
- A person may not take any action to impede an individual from communicating directly with the Commission’s staff about a possible violation of the CEA, including by enforcing, or threatening to enforce, a confidentiality agreement or pre-dispute arbitration agreement with respect to such communications. [Rule 165.19]
- The Commission has authority to bring an action against an employer who retaliates against a whistleblower, irrespective of whether the whistleblower qualifies for an award. A whistleblower continues to have the right to pursue a private cause of action against such an employer. [Rule 165.20; Appendix A to Part 165]
- Actions that an employer took after a whistleblower reported internally but before providing information to the Commission may be relevant to whether prohibited retaliation occurred. [Rule 165.20(b)]
You can find further information in our analysis of the proposed rule here.