Last Friday, the SEC announced settled charges against Foot Locker (which has since been acquired) for allegedly violating Rule 21F-17 – the whistleblower protection rule – by including problematic language in separation agreements. Without admitting the findings in the order, Foot Locker consented to the entry of a cease-and-desist order and to pay a $148,000 civil penalty.

According to the SEC’s order, from at least July 2020 through June 2024, approximately 148 departing Foot Locker employees, who were senior executives, directors, and employees in finance, legal, supply chain, and operations, signed separation agreements in order to receive severance payments. The order finds that the agreements contained a provision that purported to waive employees’ rights to receive whistleblower awards from the Commission.

The order includes the offending language:

This Agreement and General Release does not prevent you from filing a charge or participating in an investigation or proceeding conducted by a government agency, including the Securities & Exchange Commission, the Equal Employment Opportunity Commission, the Department of Justice, or comparable state or local agency. However, by signing this Agreement and General Release, you understand and agree that you are waiving the right to receive any award of monetary or other benefits or any other legal or equitable relief whatsoever resulting from any such charge or proceeding by you, anyone else on your behalf, or otherwise, unless this Agreement and General Release is invalidated. You agree to waive such personal relief even if it is sought on your behalf by an agency, governmental authority or a person claiming to represent you and/or member of a class.

Like in prior enforcement actions, the action was brought despite no indications that Foot Locker ever sought to enforce the provision or that it actually did impede reporting, and Foot Locker phased out the award waiver provision in its separation agreements in 2024.

This Debevoise alert says this enforcement action “continues a line of enforcement actions against public and private companies for including language in employment agreements, company policies, and other materials that the Commission has interpreted as having a chilling effect on potential whistleblowers in violation of Section 21F of the Dodd-Frank Act and Exchange Act Rule 21F-17(a) thereunder.” We’ve seen a lot of those actions during other administrations, but the alert continues:

The action serves as a reminder that while the current Commission may be less active in bringing cases involving violations of Rule 21F-17(a), the enforcement staff will continue to pursue instances in which companies include language in their agreements that the staff views as clearly violative.

Public and private companies should review their current employment contracts, separation agreements, and other documents across their businesses to ensure they do not contain language that could be read as prohibiting, discouraging or otherwise interfering with any protected SEC whistleblowing activities. Companies should also ensure that any prior versions of documents with such language are no longer in use.

Check out our Timely Takes Podcast “10 Tips for Whistleblower-Compliant Agreements” from 2023 for more information.

– Meredith Ervine