This morning, I moderated an interesting panel discussion at CW 2013, Compliance Week's excellent annual conference. The panel ("Whistleblower Directors Speak") featured three senior officials representing major government whistleblower programs:

Jane Norberg, Deputy Chief, Office of the Whistleblower, Securities and Exchange Commission; 

Ed Ricobene, chief of the office of policy & review in the U.S. Commodity Futures Trading Commission's division of enforcement; and 

Beth Slavet, Director, Office of Whistleblower Protection Program, United States Department of Labor, OSHA

The SEC's Norberg made some interesting comments on the SEC's current focus on anti-retaliation and "interference with communications." As I discussed in my most recent column, the SEC has been making some noise recently about the fact that the Dodd-Frank whistleblower rules prohibit retaliation by companies against whistleblowers, and the SEC is authorized to enforce these anti-retaliation protections. Recent articles have suggested that the SEC is looking for potential retaliation cases it can bring under the Dodd-Frank Act to send a message that such conduct will not be tolerated. 

Norberg reiterated the fact that retaliation is prohibited under Dodd-Frank, as is the practice of "interference with communications." Norberg explained that the SEC was aware of companies that had employee agreements in place with language that would arguably prohibit or discourage employees from providing confidential information to outside parties. Norberg stated that under Rule 21F-17 of Dodd-Frank ("Staff communications with individuals reporting possible securities law violations"), interference with a whistleblower's communications is prohibited. Rule 21F-17 states:

No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement ... with respect to such communications.

Norberg added that the agency has the right under Dodd-Frank to bring an enforcement action against a company for violations of Rule 21F-17. She stated that the SEC is trying to obtain examples of other employee agreements that might violate the rule, and is "looking hard" at this issue. Ricobene of the CFTC stated that the CFTC does not believe it has the right to bring an enforcement action to enforce the "anti-retaliation" or "interference with communications" provisions of Dodd-Frank, although employees have their own private right of action.

During the panel, an audience member asked an interesting question: if a company has a policy requiring employees to report wrongdoing internally, and an employee with knowledge of wrongdoing reports it only to a whistleblower office and not to the company, can the company take disciplinary action against the employee without violating the anti-retaliation provisions? The panelists agreed that the hypothetical presented a real "quandary" for the company, but were unable to provide a definitive answer. Norberg stated that the SEC would look hard at the actions behind the company's policy and procedures, and Slavet stated that such disciplinary action might be viewed as "disparate treatment" of employees.