Introduction: Understanding U.S. Anti-Retaliation Laws for Global Whistleblowers
If you are an individual outside of the United States with knowledge of corporate or financial wrongdoing, you may be concerned about the risk of retaliation from your employer. A common question is whether any laws can protect you if you report this misconduct. The answer is yes. Several key U.S. laws were designed with a global reach and contain powerful anti-retaliation provisions that can extend to whistleblowers located anywhere in the world, regardless of their citizenship.
These laws prohibit employers from firing, demoting, harassing, suspending, threatening, or otherwise discriminating against an employee for reporting violations. While the practical enforcement of these protections across international borders can be complex, they provide a powerful legal shield and a basis for legal action against companies with a connection to the United States. Below is a list of the primary U.S. laws that offer this crucial protection.
Key U.S. Laws with Anti-Retaliation Protections for International Whistleblowers
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
- What it Covers: The Dodd-Frank Act’s whistleblower program is one of the most powerful tools for international whistleblowers. It incentivizes reporting of securities fraud, commodities fraud, and violations of the Foreign Corrupt Practices Act (FCPA) to the U.S. Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC).
- Anti-Retaliation Protections: This is the cornerstone of whistleblower protection. The law expressly forbids employers from retaliating against an individual who provides information to the SEC or assists in an investigation. This protection has been interpreted by U.S. courts to apply to whistleblowers outside the U.S., particularly when the company has securities traded on American exchanges. If you are retaliated against, you may be entitled to remedies including job reinstatement, double back pay with interest, and compensation for litigation costs.
The Anti-Money Laundering (AML) Act of 2020
Anonymity as a Shield: Just like the SEC and CFTC programs, the FinCEN AML program allows a whistleblower to report entirely anonymously by retaining a U.S. attorney to submit the information on their behalf. This provides an essential layer of protection, as your employer will not know your identity, making it the most effective way to prevent retaliation from the start.
What it Covers: This powerful law created a new whistleblower program administered by the Treasury Department’s Financial Crimes Enforcement Network (FinCEN). It is designed to incentivize the reporting of violations of the Bank Secrecy Act (BSA) and other U.S. sanctions and anti-money laundering laws. This includes:
- Failure by banks and other financial institutions to maintain adequate anti-money laundering controls.
- Failure to file Suspicious Activity Reports (SARs) or Currency Transaction Reports (CTRs).
- Money laundering through U.S. financial institutions.
- Violations of U.S. economic sanctions against individuals, entities, or countries.
Anti-Retaliation Protections: The AML Act contains one of the strongest anti-retaliation provisions available. It expressly prohibits employers from retaliating against a whistleblower who reports a potential violation of the Bank Secrecy Act or U.S. sanctions laws. Importantly, the law was designed with a broad scope and is intended to apply to both domestic and foreign whistleblowers who report misconduct that has a U.S. connection. If you are retaliated against, you are entitled to seek remedies that include job reinstatement, double back pay, and compensation for legal fees.
The Sarbanes-Oxley Act (SOX)
- What it Covers: SOX was enacted to combat corporate accounting fraud. Its protections apply to employees of publicly traded companies in the U.S., as well as their foreign subsidiaries and contractors.
- Anti-Retaliation Protections: SOX makes it illegal for an employer to retaliate against an employee for reporting conduct they reasonably believe constitutes mail fraud, wire fraud, bank fraud, securities fraud, or any violation of SEC rules. The U.S. Supreme Court has confirmed that these protections apply to employees working outside the United States for U.S. public companies or their overseas subsidiaries. If you face retaliation, you can file a complaint with the U.S. Department of Labor.
The False Claims Act (FCA)
- What it Covers: The FCA is designed to combat fraud against the U.S. government. This includes instances where a foreign company overcharges on a U.S. government contract or provides fraudulent information to receive U.S. funds.
- Anti-Retaliation Protections: The law protects anyone—including non-U.S. citizens—who takes lawful acts in furtherance of an FCA action. This includes investigating, testifying, or initiating a case related to fraud against the U.S. government. The protections apply to employees, contractors, and agents who are discriminated against for their efforts to stop the fraud. These protections are vital for employees of international companies that are U.S. government contractors.
4. The Foreign Corrupt Practices Act (FCPA)
- What it Covers: The FCPA prohibits companies with U.S. ties from bribing foreign government officials to obtain or retain business.
- Anti-Retaliation Protections: While the FCPA itself does not contain a specific anti-retaliation provision, retaliation for reporting an FCPA violation is explicitly prohibited under the Dodd-Frank Act and the Sarbanes-Oxley Act. Therefore, if you report foreign bribery by a company subject to U.S. law, you are protected from retaliation under those powerful statutes.
Important Considerations for International Whistleblowers
- Jurisdictional Nexus: The ability to enforce these protections is strongest when the company you are reporting has a clear connection, or “nexus,” to the United States. This includes being listed on a U.S. stock exchange, being a subsidiary of a U.S. company, or having significant business operations in the U.S.
- Anonymity as the First Line of Defense: The SEC and CFTC whistleblower programs established by the Dodd-Frank Act allow you to submit a tip completely anonymously if you are represented by a U.S.-licensed attorney. This is often the most effective protection against retaliation, as your employer will not know who reported the information.
- Seek Legal Counsel: Navigating the complexities of international whistleblower law requires expertise. It is crucial to consult with a U.S. attorney who specializes in these cases to understand how the law applies to your specific circumstances and to ensure you are protected to the fullest extent possible.
