Securities — whistleblower protection

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U.S. Supreme Court

Civil

Securities — whistleblower protection

The term “an employee” in 18 U.S.C. 1514A(a) is not limited to employees of public companies.

The Court looks first to the ordinary meaning of the provision’s language. See Moskal v. United States, 498 U. S. 103, 108. As relevant here, §1514A(a) provides that “no . . . contractor . . . may discharge . . . an employee.” The ordinary meaning of “an employee” in this proscription is the contractor’s own employee. FMR’s “narrower construction” requires inserting “of a public company” after “an employee,” but where Congress meant “an employee of a public company,” it said so.

The provision as a whole supports this reading. The prohibited retaliatory measures enumerated in §1514A(a)—discharge, demotion, suspension, threats, harassment, or discrimination in employment terms and conditions—are actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR’s interpretation of §1514A, therefore, would shrink to insignificance the provision’s ban on retaliation by contractors. The protected activity covered by §1514A, and the provision’s enforcement procedures and remedies, also indicate that Congress presumed an employer-employee relationship between the retaliator and the whistleblowing employee.

670 F.3d 61, reversed and remanded.

12-3 Lawson v. FMR, LLC

Ginsburg, J.; Scalia, J., concurring; Sotomayor, J., dissenting.