Do Confidentiality Agreements Silence Whistleblowers?

A survey finds that many employees in the financial industry see wrongdoing but don’t report it, and some hold their tongue because of what they understand as strictures imposed by confidentiality agreements or other policies that could work against them if they snitched. This trend was found to be most pronounced among senior employees, with 25 percent of those earning $500,000 or more saying they had signed such an agreement and 28 percent saying such a policy was in place. The survey was done by the University of Notre Dame and law firm Labaton Sucharow, which often represents whistleblowers, according to a Washington Post article about the survey report. Plaintiff attorneys, as well as SEC chair Mary Jo White, are quoted essentially corroborating the survey conclusions. But the Post also quotes Littler Mendelson attorney Gregory Keating, co-chair of the firm’s whistleblower practice, who takes issue with those conclusions. Employers don’t craft these agreements to gag people, he says, but on the contrary many employers, sometimes at their own initiative and sometime at the suggestion of counsel, modify and clarify their agreements to make clear that employees are not precluded from communicating with government agencies.