On 4th November 2013, the US Senate unanimously passed legislation to extend whistleblower protection for employees providing information to the Department of Justice relating to criminal antitrust violations.
The Criminal Antitrust Anti-Retaliation Act was jointly introduced by Senator Patrick Leahy (Democrat, Vermont) and Senator Chuck Grassley (Republican, Iowa), chairman and ranking member of the Senate Judiciary Committee. The Senators were the authors of previous whistleblower provisions within the 2002 Sarbanes-Oxley Act, passed in the aftermath of the collapse of Enron. Senator Grassley was reported as commenting that “Too often whistleblowers who risk their careers to expose waste, fraud and abuse are treated like second-class citizens.”
The recent Bill was based on a report released in July 2011 by the US Government Accountability Office. It adds a civil remedy for those who have been fired, or otherwise discriminated against, after blowing the whistle on criminal antitrust activity. Employees who believe they are victims of retaliation may file complaints with the Secretary of Labor. The new Act provides for those employees to be reinstated to their former status if the Secretary of Labor finds in their favor. Senator Leahy commented that “The Criminal Antitrust Anti-Retaliation Act does not provide employees with an economic incentive to report violations. The legislation simply makes whole employees who have been fired or discriminated against for blowing the whistle on criminal conduct.” Critics of the measure have pointed to the absence of an economic incentive as an obstacle to the effectiveness of the legislation.
Commentators have pointed to the case of Marty McNulty as exemplifying the kind of injustice that Leahy and Grassley’s Bill is intended to eliminate. In 2005, McNulty claimed to have discovered that his employer, Arctic Glacier International, had agreed with Home City Ice to keep the prices of its packaged ice artificially high. He repeated the allegation to the FBI. Both companies were ordered to pay $9 million in fines. McNulty was fired and claimed to have been blackballed within the industry. Supporters of the new measure point out that McNulty would have both kept his job and been able to claim for damages suffered in the process.