Reporting and Anti-Retaliation Policy Handbook Statement

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include This Statement

A number of federal laws include whistleblower protections and still others provide rewards for employees who report misconduct to government agencies. Employers should consider including this statement in their handbook to promote an atmosphere in which employees are comfortable reporting illegal or unethical behavior internally and to help ensure that they are not retaliated against for doing so.

Reporting and Anti-Retaliation Policy

We Encourage A Speak Up Culture

Choosing to speak up about workplace concerns helps builds a healthy, ethical, and compliant company and is part of our culture. To promote that culture, the Company encourages employees to speak up and raise questions and concerns promptly about any situation that may violate our Code of Conduct, our core values or our policies. At [Company Name], our people are our most valuable asset. It benefits all of us if we raise our concerns so the Company may consider them carefully and address them properly.

Follow the Company's Commitment to our Code and the Law

The Company is deeply committed to promoting a culture of ethical conduct and compliance with:

  • Our Code, Core Values, and policies;
  • The laws, rules, and regulations that govern our business operations; and
  • Best practices in accounting, auditing and financial reporting matters.

We expect all of our employees, officers, directors, and agents to follow this commitment in all aspects of their work.

Raise Good Faith Questions and Concerns About Conduct that may Violate our Code

Consistent with our commitment to ethics, compliance, and the law, we welcome your good faith questions and concerns about any conduct you believe may violate our Code, especially conduct that may be illegal, fraudulent, unethical or retaliatory.  For purposes of this policy, and because our Code captures standards of ethics and compliance at a broad level, references to our "Code" should be read to encompass all of our obligations to perform our jobs in a manner that is consistent with the Company's policies and procedures, as well as applicable laws.

We promote an environment that fosters honest, good faith communications about matters of conduct related to our business activities, whether that conduct occurs within [Company Name], involves one of [Company Name's] contractors, suppliers, consultants, or clients, or involves any other party with a business relationship to [Company Name].

Other parts of this handbook address the confidentiality of the Company's trade secrets and other proprietary information.  Employees should note that in raising any questions or concerns they may have about potentially illegal conduct, pursuant to the 2016 Defend Trade Secrets Act (DTSA):

  • No individual will be held criminally or civilly liable under federal or state trade secret law for disclosure of a trade secret (as defined in the Economic Espionage Act) that is:
    • Made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and made solely for the purpose of reporting or investigating a suspected violation of law; or,
    • Made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and
  • An individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.

The Company Does Not Tolerate Retaliation

Coming forward with questions or concerns may sometimes feel like a difficult decision, but we are committed to fostering an environment that does not deter individuals from speaking up when they observe conduct that may violate our Code. For that reason, the Company will not tolerate retaliation of any kind because an employee in good faith raises a question or concern about a violation or suspected violation of our Code, our policies, or the laws and regulations under which we do business, or because the employee participates in or cooperates with an investigation of such concerns.

Retaliation is any conduct that would reasonably dissuade an employee from raising, reporting or communicating about good faith concerns through our internal reporting channels or with any governmental authority [OPTIONAL:  "(e.g., the Securities and Exchange Commission, EEOC, or Department of Labor),] or from participating in or cooperating with an investigation or legal proceeding raising such concerns.

Retaliation may occur through conduct or written communication and may take many forms, including actual or implied threats, verbal or nonverbal behaviors, changes to the terms or conditions of employment, coercion, bullying, intimidation, or deliberate exclusionary behaviors.

The following are examples of potential retaliation the Company prohibits:

  • Adverse employment action affecting an employee's salary or compensation;
  • Demotion, suspension, or termination of employment;
  • Taking away opportunities for advancement;
  • Excluding an employee from important meetings;
  • Threatening an employee who has made a report;
  • Directing an employee who has made a report not to report to outside regulators;
  • Deliberately rude or hostile behaviors or speech; and
  • Creating or allowing the creation of a work atmosphere that is hostile toward an employee who has reported a concern.

It is the Company's policy to adhere to all applicable laws protecting our employees against unlawful retaliation or discrimination as a result of their raising good faith questions or concerns. If you are ever aware of an instance or threat of retaliation, please immediately report it.

Please note that nothing in this policy prevents the Company from taking appropriate disciplinary or other legitimate employment action consistent with its usual disciplinary practices and the law. In addition, this policy prohibits and does not protect employees who knowingly and intentionally raise false concerns or reports

How to Raise Questions and Concerns

Employees can submit their good faith questions or concerns about conduct they believe may violate our Code, our policies or the laws and regulations under which we do business to:

  • Their supervisor or manager;
  • Any [Company Name] leader;
  • Human Resources;
  • Legal / Compliance;
  • The Chief Compliance Officer / General Counsel; or
  • Our anonymous and confidential Ethics Hotline.

When an employee raises a concern, the Company will maintain confidentiality to the fullest extent possible, consistent with applicable legal requirements and the need to conduct an adequate investigation or review. Please note that employees can submit concerns anonymously and confidentially through our Ethics Hotline.

When raising concerns, we ask that employees provide as much detailed information as possible, including the background and history of the concern, names, dates and places where possible, and the reasons why the situation is cause for concern. This is especially important for concerns raised anonymously, so that the Company may conduct an appropriate review and, if necessary, begin an investigation.

Please note as well that [Company Name] does not prohibit anyone from electing to report concerns, make lawful disclosures, or communicate with any governmental authority about conduct believed to violate laws or regulations.

What [Company Name] Will Do

[Company Name] is committed to reviewing all reported concerns, conducting proper, fair and thorough investigations tailored to the circumstances, and taking appropriate remedial and concluding steps as warranted. All action taken by the Company in response to a concern will necessarily depend on the nature and severity of the concern. This may include initial inquiries and fact-gathering to decide whether an investigation is appropriate and, if so, the form and scope of the investigation. Note that an investigation into concerns raised is not an indication that they have either been confirmed or rejected.  The Company complies with the law in conducting investigations. The Company also expects that employees will provide truthful information when participating in an investigation.

Remember, all good faith concerns and reports raised under this policy will be taken seriously.

Adherence to This Policy

Employees who believe that they have been subjected to any conduct that violates this policy may register a complaint using the procedures outlined above. Any employee who unlawfully discriminates or retaliates against another employee as a result of his or her protected actions as described in this policy may be subject to corrective action, up to and including termination.

Guidance for Employers

  • Employers may have to comply with both federal and state whistleblowing laws. Check state law to ensure compliance.
  • Develop procedures for employees to report illegal or unethical conduct and make a conscientious effort to maintain confidentiality to the extent possible.
  • Employers should establish reliable reporting mechanisms that are trusted by employees. One type of reporting mechanism to consider is an anonymous hotline, which is referenced in the policy statement provided. Some employers are required under the Sarbanes-Oxley Act (SOX) to have anonymous complaint procedures available to employees. Even for those employers not required to have an anonymous hotline, doing so can be a valuable way to encourage employees to come forward and reduce the potential for retaliation against whistleblowers.
  • Take steps to create a culture of trust that includes promoting open and honest communication, in which employees feel confident that issues will be dealt with appropriately and they do not fear retaliation.
  • Train supervisors and employees on the whistleblowing policy and procedures. Also train supervisors on how to set a strong ethical example, encourage employees to come forward with concerns and respond appropriately when they do.
  • Create a complaint management system that will allow the company to respond promptly and effectively when an employee does come forward with concerns. Ensure that key stakeholders across the organization, including the legal and compliance departments, are involved when needed to respond appropriately to and/or investigate the allegations.
  • Avoid including language in the policy statement that limits employee communications with the media (other than communications that appear to be on the company's behalf), requires that an employee participate in an investigation or requires that employees maintain confidentiality about matters being investigated. These issues have been scrutinized by the National Labor Relations Board (NLRB), and many such rules have been struck down as overbroad and infringing on employee rights. It is advisable to consult legal counsel on these issues.
  • The Defend Trade Secrets Act of 2016 (DTSA), protects trade secrets by providing a federal court civil remedy for acts of trade secret misappropriation. The DTSA contains an immunity provision designed to protect whistleblowers. An individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made "in confidence" to a federal, state, or local government official, either directly or indirectly, or to an attorney, provided that: it is disclosed "solely for the purpose of" reporting or investigating a suspected violation of law, or is made in a complaint or other document filed in a lawsuit or other proceeding filed under seal so that it is not disclosed to the public.  In addition, an individual who files a lawsuit for retaliation stemming from an employer's suspected law violation may disclose trade secret information to his or her attorney and in the court proceeding, provided the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. Employers must provide notice of these immunity provisions in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.  An employer will be deemed to be in compliance with this notice requirement if it provides a cross-reference to a policy document provided to the employee that describes the employer's reporting policy for a suspected law violation. If an employer does not comply with this notice requirement, the employer may not be awarded exemplary damages or attorneys' fees under the statute in an action against an employee who misappropriates trade secrets.    A paragraph in this policy statement provides notice of the DTSA whistleblower immunity provisions.                   
  • The Securities and Exchange Commission's Office of the Whistleblower (OWB) has begun seeking and scrutinizing company agreements, statements, policies and training related to whistleblowing and confidentiality. The OWB views certain policies and statements as a form of systemic retaliation if they are overly broad and serve to silence would-be whistleblowers. Employers should work with counsel to ensure that their policies, procedures and agreements do not create an impermissible requirement for employees to bring legal or ethical concerns to the attention of the employer prior to, or instead of, the attention of an enforcement agency. These documents should also affirmatively remind employees that they have the right to file claims and disclose information regarding the employer's business practices with applicable government enforcement entities.
  • Make sure there are no reprisals against employees who report concerns in good faith.

Additional Resources

Whistleblower Statute Filing Requirements

Retaliation - Supervisor Briefing