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Dodd-Frank Whistleblower Retaliation Claims

The Dodd-Frank Act added Section 21F to the Securities Exchange Act of 1934, which establishes, inter alia, a private cause of action for employees of public companies who have been retaliated against by their employers for blowing the whistle on possible securities-law violations. 15 U.S.C. § 78u—6(h)(1)(A).
To prevail on a Dodd-Frank whistleblower retaliation claim, a plaintiff must prove that (1) she engaged in protected activity; (2) the employer knew or suspected, either actually or constructively, that she engaged in the protected activity; (3) she suffered an unfavorable personnel or employment action; and (4) the protected activity was a contributing factor in the unfavorable action. Riddle v. First Tenn. Bank, Nat’l Assoc., 497 Fed. App’x 588, 594 (6th Cir. 2012).
Under Section 21F, adverse employment action includes to “discharge, demote, suspend, threaten, harass, directly or indirectly, or in any manner discriminate against, a whistleblower in the terms and conditions of employment . . . .” 15 U.S.C. § 78u-6(h)(1)(A). A forced or coerced retirement or resignation is actionable as a “constructive discharge.” See Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1999).
A plaintiff who prevails on a Dodd-Frank whistleblower retaliation claim is entitled to statutory relief that includes “2 times the amount of back pay . . . with interest,” reinstatement with the same seniority, and “compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.” 15 U.S.C. § 78u—6(h)(1)(C). Back pay includes overtime, vacation and sick pay, health and pension benefits, lost bonuses, stock options, and other fringe benefits. In addition to back pay, and in lieu of reinstatement, a court may award front pay. See, e.g., Jones v. Southpeak Interactive Corp. of Delaware, 986 F. Supp.2d 680, 687-688 (E.D. Va. 2013) (acknowledging the availability of front pay in lieu of reinstatement under SOX).
The statute of limitations for a whistleblower retaliation claim under Section 21F of the Exchange Act is “at least six years.” Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 778 (2018); accord Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 629 (5th Cir. 2013) (limitations period for Section 21F whistleblower retaliation claim is “between six to ten years after the violation occurs.”). A claim accrues when “final and unequivocal” notice of the adverse employment action is given. See Yellow Freight Sys. v. Reich, 27 F.3d 1133, 1141 (6th Cir. 1994); Detroit Edison Co. v. Secretary, United States Dep’t of Labor, 1992 U.S. App. LEXIS 8280, at *12-13 (6th Cir. 1992).
“[E]mployers may not require employees to waive or limit their anti-retaliation rights under Section 21F.” See Securities Whistleblower Incentives and Protections, 76 Fed. Reg. at 34304.