As companies discover the identity of a storyteller in an unsealed action, confidentiality agreements are a problem for some Storytellers under the False Claims Act. The SEC`s Office of Whistleblowers has taken a very aggressive approach to these employer tactics. The head of the whistleblower office Sean McKessy noted that the SEC is looking for contracts that prevent whistleblowers in one way or another from providing information about corporate misconduct to the SEC. McKessy said, “[W]e are actively looking for examples of confidentiality agreements, separation agreements, personnel agreements that … To obtain this benefit, you agree not to come to the Commission or to report anything to a regulator. [1] As noted above, the risk alert issued by the SEC on October 24, 2016 clearly demonstrates that the Agency continues to pursue these issues aggressively. And the activities of the EEOC and other agencies reinforce the need to carefully review internal policies, procedures and agreements to verify the necessary changes. Companies should explicitly state in guidelines and agreements that employees are not prevented from reporting or providing information about potential violations to public regulators. In addition, companies should not try to limit the types of information that can be shared with the SEC. The SEC cautioned against provisions that allow disclosure only to the extent required by law, “without exception for voluntary communications” with the SEC.

[10] Although many employers were aware of both the DFA rule and the SEC`s stated plan to enforce it prior to this development, the SEC`s attempt to enforce Rule 21F-17 was unclear. This measure therefore informs employers that they should consider the revision and, if necessary, revision of employment agreements (including frequently used models) that contain restrictive conditions, including employment contracts, confidentiality agreements, non-competition agreements, confidentiality rules in manuals or codes of conduct, as well as confidentiality and non-disappearance rules in separation agreements. As part of the compliance program, KBR reviewed complaints about the illegal conduct of its staff internally. [5] During interviews for the investigation, KBR would sometimes require witnesses to sign confidentiality agreements that prevent them from disclosing to anyone the facts leading up to the investigation, without the consent of KBR`s legal department. Any unauthorized disclosure under the agreement could result in disciplinary action, including termination of the employment relationship.

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