Appendix A to Part 165 - Guidance With Respect to the Protection of Whistleblowers Against Retaliation
17:2.0.1.1.28.0.1.21.25 : Appendix A
Appendix A to Part 165 - Guidance With Respect to the Protection of
Whistleblowers Against Retaliation
(a) In general. Section 23(h)(1) of Commodity Exchange
Act prohibits employers from engaging in retaliation against
whistleblowers. A violation of this provision could be addressed by
a Commission enforcement action, or a lawsuit by an individual.
Section 23(h)(1)(B) provides for a federal cause of action brought
by the whistleblower against the employer, which must be filed in
the appropriate district court of the United States within two (2)
years of the employer's retaliatory act, and potential relief for
prevailing whistleblowers, including reinstatement, back pay, and
compensation for other expenses, including reasonable attorney's
fees.
(b) Enforcement - (1) Private cause of action. (i)
An individual who alleges discharge, demotion, suspension, direct
or indirect threats or harassment, or any other manner of
discrimination in violation of section 23(h)(1)(A) of the Commodity
Exchange Act may bring an action under section 23(h)(1)(B) of the
Commodity Exchange Act in the appropriate district court of the
United States for the relief provided in section 23(h)(1)(C) of the
Commodity Exchange Act, unless the individual who is alleging
discharge or other discrimination in violation of section
23(h)(1)(A) of the Commodity Exchange Act is an employee of the
Federal Government, in which case the individual shall only bring
an action under section 1221 of title 5, United States Code.
(ii) Subpoenas. A subpoena requiring the attendance of a
witness at a trial or hearing conducted under section
23(h)(1)(B)(ii) of the Commodity Exchange Act may be served at any
place in the United States.
(iii) Statute of limitations. A private cause of action
under section 23(h)(1)(B) of the Commodity Exchange Act may not be
brought more than 2 years after the date on which the violation
reported in section 23(h)(1)(A) of the Commodity Exchange Act is
committed.
(iv) Relief. Relief for an individual prevailing in an
action brought under section 23(h)(1)(B) of the Commodity Exchange
Act shall include -
(A) Reinstatement with the same seniority status that the
individual would have had, but for the discrimination;
(B) The amount of back pay otherwise owed to the individual,
with interest; and
(C) Compensation for any special damages sustained as a result
of the discharge or discrimination, including litigation costs,
expert witness fees, and reasonable attorney's fees.
(2) Commission authority to bring action. The Commission
may bring an enforcement action against an employer that retaliates
against a whistleblower by discharge, demotion, suspension, direct
or indirect threats or harassment, or any other manner of
discrimination.
[82 FR 24501, May 30, 2017]