Virtually every new federal law which impacts the employment relationship prohibits retaliation, designed to protect those who report, complain about or otherwise express concerns regarding activities which they believe to be illegal, as well as those who cooperate in investigations and other enforcement procedures. The usual form of such protections is the model found in employment discrimination law, language dealing with “participation in” claims and “opposing” violations of the law, with victims of retaliation having the same rights and remedies as those available to those who experience discrimination. A variant of that approach is found in the Sarbanes-Oxley Act of 2002, in which the “whistleblower” protections are expressed in a criminal statute which also carries civil remedies.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173), signed on July 21, 2010, adopts a quite different approach. Although the statute contains the typical non-retaliation language and affords confidentiality to those who report what they think to be illegal activities, Dodd-Frank offers a strong incentive for blowing the whistle.