Whistleblower laws are designed to protect individuals who point out illegal or wasteful conduct in their places of employment from employer retaliation. The Supreme Court’s decision in Digital Realty Trust, Inc. v. Somers, 583 U.S. ____ (2018), indicates that the Court will interpret such statutes strictly in accord with the definitions that individual whistleblower laws provide.

In so doing, the Court reversed decisions by both a U.S. district court and the 9th U.S. Circuit Court of Appeals.

In this case, Paul Somers, a vice president of Digital Realty Trust, Inc. from 2010-2014, sought recompense under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act after Digital Realty fired him after he reported possible securities-law violations to senior management.

Somers did not use provision of the prior Sarbanes-Oxley Act of 2002, which would have required him to file an administrative complaint within 180 days of his termination nor had he specifically reported his suspected violations directly to the Securities and Exchange Commission (SEC), although nothing prevented him from so doing.

Congress specifically defines 'whistleblower'

Justice Ruth Bader Ginsburg wrote a decision for six members of the Court, and in which all justices concurred. Ginsburg pointed out that in adopting the Dodd-Frank Act, Congress specifically defined a whistleblower as “any individual who provides . . . information relating to a violation of the securities law to the Commission, in a manner established, by rule or regulation, by the Commission” and that it adopted this provision because it specifically intended to generate information for the SEC.

The Court further rejected an interpretation that would have applied this provision only to a rewards program for whistleblowers rather than for protection against wrongful termination. In cases where Congress adopted a law with a clear purpose and a clear definition, the Court said that it was bound to follow them, even if such an interpretation provided less protection that the general term whistleblower might have provided.

Justice Sonia Sotomayor issued a concurring opinion, joined by Justice Stephen Breyer, to indicate that, unlike the other concurrence, they believed it was appropriate to consider a Senate Report when considering legislative intent.

Justice Clarence Thomas authored another concurring opinion, joined by Justices Samuel Alito and Neil Gorsuch, indicating that they did not think it was appropriate to ascertain legislative intent apart from the specific words of the statute.

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