New Law Protects Criminal Antitrust Activity Whistleblowers From Employer Retaliation

December 28, 2020

On Dec. 23, 2020, President Trump signed into law the Criminal Antitrust Anti-Retaliation Act. The new law, whose passage was applauded by the Department of Justice, prohibits employers from retaliating against employees who report criminal antitrust violations, whether to the federal government or to their internal supervisors.

The Criminal Antitrust Anti-Retaliation Act states that no employer may discharge, demote, suspend, threaten, harass or in any other manner discriminate against an employee because that employee reported criminal antitrust activity prohibited by Sections 1 and 3 of the Sherman Act (or other criminal activity committed along with such criminal antitrust activity).

The whistleblower protections only cover the reporting of criminal antitrust activity, such as price-fixing or bid-rigging conspiracies among competitors. Civil antitrust violations are not included. Importantly, the new law also does not cover any individual who planned or initiated such criminal activity, meaning ringleaders of antitrust violations cannot escape employer discipline or termination by reporting their own wrongdoing.

Employees may file administrative complaints against their employers with the Secretary of the Department of Labor for violating the Criminal Antitrust Anti-Retaliation Act, which may be elevated to a U.S. District Court if the Secretary of the Department of Labor does not issue a final decision within 180 days. Remedies include full reinstatement, back pay with interest, and special damages, including attorney’s fees, litigation costs and expert witness fees.