Doj and Osha aim on NDAs that undermine the protective laws of whistleblower

On January 14, 2025, the Department for Ministry of Justice (“Department”) and the Ministry of Health for Security and Health Administration (“Osha”) published a joint press release that was made aware of the failure of companies (“ndas”.) Hold down potential antitrust crimes. Employers who use NDAs who may hinder whistleblowing can be punished if the cartel department makes loading decisions and recommendations for the conviction and takes into account applications at will. Employers could also be subject to criminal charges if the NDA is used to disability an investigation. The announcement reflects a broader initiative of the Ministry of Justice (“doj”) and other federal authorities to determine the suppression of the protection of Whistleblower and to strengthen Whistleblower programs in order to report reporting on the reporting on corporate error attacks.

I. New Federal Antible guidelines for NDAS and whistleblower protection

The press release on January 14 focuses on NDA regulations that undermine the antaliation act of 2019 (“Caara”) and could hinder the rights of employees to report potential violations of antitrust law.

Among Caara, it is prohibited from employers to refer employees or relieve employees who (1) report potential violations of antitrust law and the associated crimes to their employer or the federal government or (2) help with a federal investigation or a procedure during federal investigations are.² According to the department “The mere implication that an NDA would prevent the employees from reporting illegal behavior or supporting an investigation or procedure, collides with the basic principles behind Caara.”³ and hinders the protection of whistleblower.

When assessing the effectiveness of the compliance program of a company, the NDAS department and other relevant contractual restrictions and anti-retaliation training will take into account. Contractual provisions that affect employers' reporting rights or “relax” employers will have negative consequences for employers if the department makes charge decisions and recommendations for conviction. In addition, contractual provisions that hinder or hinder an investigation can represent separate federal criminal injuries.⁴ Similarly, provisions that disrupt the cooperation of employees with investigations by the Federal Government also endanger the ability of an employer to fulfill his obligations as part of the Lenienz policy of the antitrust department.⁵

II. Wider efforts to promote and protect whistleblower

Doj

The press release of January 14th is part of a wider DOJ initiative to promote corporate whistleblowers and to ensure its protection. Last year, Doj implemented several new programs and guidelines:

Pilot program for corporate whistleblower awards: The pilot program for corporate whistleblower Awards creates individuals to disclose corporate or financial misconduct by making up to whistleblower financial rewards available.⁶ The pilot program expressly identifies four areas that were not previously covered by a Federal Whistleblower program:

• Foreign corruption and bribery;
• Crimes related to financial institutions;
• Corruption with US officials; And
• Fraud in healthcare.⁷

Although the program emphasizes the four areas mentioned above, information about misconduct that is not covered by an existing whistleblower program but do not fall into one of these four categories, we would like to hear from you. “⁸

Appropriate whistleblower, which voluntarily disclose original information, which leads to successful falls of more than $ 1,000,000, can be up to 30% of the first 100 million US dollar in net proceeds and up to 5% of the net proceeds between 100 and 500 million US – Fall dollar.⁹ The program obliges the departments of the company conformity regulations to “carry out training for guidelines that report incentives for misconduct, and protect employees who report misconduct.¹⁰ The program provides for potential penalties for companies that are potential conviction and/or law enforcement for the disability of the judiciary, including the potential conviction, including the revocation of a company.¹¹

Implementation of companies and voluntary self -revealing policy: This guideline describes the factors that the DOJ takes into account in criminal matters against companies. This policy changed in August 2024 and is a suspected explanation for companies who report alleged misconduct within 120 days of a whistleblower complaint, the full cooperation and remedy.¹²

Revised antitrust bill ECCP guidelines: By evaluating corporate compliance programs (“ECCP”), the principles with which the prosecutors are assessed when assessing the charges, convictions or punishments that a company is subject to in solving a criminal investigation.¹³ After the update from Doj to his ECCP¹⁴ – This provides that the prosecutors should “evaluate the effectiveness of a company's reporting mechanism, including the question of whether a company encourages and stimulates its employees to report misconduct or to discourage such reports”.¹⁵ -The department published their revised antitrust law-specific guidelines (the “revised antitrust calculator ECCP”).¹⁶ The revised antitrust law ECCP provides further instructions on how the department will evaluate the protection of the whistleblower in connection with the enforcement of antitrust rights, including emphasizing the importance of a company:

• Confidential internal reporting mechanisms;
• Comprehensive anti-retaliation training and Caara protection;
• Ndas free of restrictive or terrifying language;
• Guidelines that ensure that employees can report cartel violations both internally and the government.¹⁷

US lawyer offices: At the local level, the US law firm for the Central District of California and the Southern District of New York have announced their own Whistleblower guidelines, among other things, to further report reporting on the misconduct of companies.

Other federal authorities

Commodity Futures and Trading Commission: In June 2024, the Commodity Futures Trading Commission (“CFTC”) asked a company in June 2024 to pay a monetary citizens' penalty of 55 million US dollars for violations, including the disability of reporting by a whistleblower.¹⁸According to the order, the company asked its employees to sign employment agreements and demanded that former employees sign separate agreements that do not contain obvious provisions that prohibited them from disclosing corporate information, without exception for law enforcement authorities or supervisory authorities, illegally disabled people Communication with employees of the Department of Implementation (“Doe”) during the examination.¹⁹

Securities and Exchange Commission: In September 2024, the Securities and Exchange Commission (“Sec”) announced that seven public companies jointly paid more than $ 3 million due to violation of 21f-17 (A).²⁰This rule prohibits that a person communicates a person directly with the SEC about potential violations of the securities law. In these cases, the relevant agreements included the exemption of their right to possible whistleblower money prices. Although the companies do not implement measures to implement these provisions, the SEC found that the provisions created obstacles to participation in the Commission's Whistleblower program.²¹

Enforcement network for financial crimes: The Financial Crimes Enforcement Network (“Fincen”) has promoted its Whistleblower program in a similar way, which largely pursues the parameters of the Whistleblower program of the SEC.²²

National Highway Traffic Safety Administration (NHTSA): In December 2024, the National Highway Traffic Safety Administration (“NHTSA”) completed public comments after examining the new implementation of the provisions of the Whistleblower provisions of the Vehicle Safety Act, which the Whistleblower Award program formalized.²³

III. Key Takeaways

The DOJ's press release on January 14th shows how important it is to ensure that companies have robust, current, current internal reporting mechanisms, guidelines against retaliation as well as guidelines and agreements that do not do so “cool“” Reporting on potential corporate errors that falsified either internally or to the supervisory authorities. In view of the increasing focus on the protection of whistleblower in the federal authorities

• Check compliance programs, guidelines and contractual language to ensure compliance with the protection of whistleblower.
• Include explicit statements in contracts (including NDAs, employment, comparison and separation agreements), which confirm that the company does not prohibit reporting on criminal activities on law enforcement;
• Addressing anti-retaliation protection and Caara compliance in guidelines and training programs; And
• Understand the protection to which whistleblower is entitled and when it is appropriate (and legally defending) to drive adverse employment measures forward.

Companies are also asked to check the updated compliance guidelines of the department in order to get further insights into best practice. You can find more information in this client alarm. If you have any questions about compliance with whistleblower, please contact the persons listed in this warning.

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