Whistle While You Work: Congress Strengthens Protections for Employees Reporting Antitrust Violations

The President recently signed into law the Criminal Antitrust Anti-Retaliation Act (S. 2258) (116^th Cong. (2020)), which amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004. It grants stronger protections to employees who come forward with claims of antitrust violations. Specifically, the law prohibits employers from discharge, demotion, or suspension, as well as any discrimination against any employee who assists in a government antitrust investigation.

Protections against retaliation are an integral part of whistleblower statutes, as exemplified by the False Claims Act. CAARA’s legislative sponsors sought to redress oversights in the original law and protect innocent employees who came forward with knowledge of violations, acts “reasonably believed” to be violations or other crimes committed in conjunction with antitrust violations. The law now includes “employees, contractors, subcontractors, and agents of the employer,” in its definitions of both “employer” and “covered individual.” The Act’s protections do not extend to an employee who participates in or obstructs the government’s investigation into antitrust violations or related crimes. 

Now employees have an “administrative” remedy to exhaust. Employees alleging retaliation by an employer can file a complaint within 180 days with the Department of Labor. If the complaint is successful, the employer must pay as damages any amount that would make the employee whole, including back pay, with interest, litigation costs, and reasonable attorneys’ fees. The employee must also be reinstated with at least the same seniority that the employee would have had but for the discrimination.

Orders to reinstate are immediately effective. If the employer does not comply with the Secretary of Labor’s order, either the Secretary or the aggrieved employee may file a complaint in federal court to enforce the order. The employee may also file a complaint in federal court, which will have jurisdiction regardless of the amount in controversy if the Department of Labor does not issue a final order within 180 days of the filing of the complaint by the employee.

The importance of internal procedures to investigate antitrust violations and retaliation claims is underscored by the indictment in U.S. v. Jindal (E.D. Tex. 2020), a recent case alleging wage-fixing. The charges confirm the Department of Justice’s expansive view of potential antitrust violations beyond the traditional agreements among competitors of a product or service to employment practices, especially wages or salaries. CAARA and Jindal continue the trend toward encouraging employees to come forward. As protections strengthen, employees are empowered to act unilaterally, exposing employers to unforeseen accusations and unintended consequences.

Companies should be sure to have clear and robust written procedures in place to assess and, where needed, investigate allegations of retribution. Employers should also remain diligent in their review. Perceived retaliation could result in damages even if the antitrust allegations are unproven.

If you have any questions, please contact Jonathan Feld (312-627-5680 or JFeld@dykema.com), Kevin Connor (312-627-8322 or KConnor@dykema.com), or your Dykema relationship attorney.