WorkLife 2.0: from our US correspondent – an interview with Boris Feldman

It is undisputedly a time of transition and transformation in the US. But what does this mean for whistleblowing and in particular, whistleblowing in the context of the #MeToo movement?

Who better to speak to about the winds of change than Boris Feldman, Freshfields Partner and Head of US Technology Dispute, Litigation and Arbitration. Boris, who joined Freshfields as a partner in July 2020, specialises in securities litigation, merger and acquisitions, and fiduciary duty and disclosure counselling and has represented a number of leading technology companies as well as several legendary entrepreneurs. Boris has defended over 240 shareholder class actions, derivative suits, and merger challenges throughout the US on behalf of domestic and foreign issuers.

On dialling into our video-call, Boris, bedecked in his signature bow tie, is firm in his prediction that the incoming Biden administration will put whistleblowing and #MeToo issues high on the agenda for change.

Thanks for speaking to me today Boris and sharing some of your insights on the health of whistleblowing in the US and in particular #MeToo related whistleblowing. 

Always a pleasure!

As you know, in a recent Freshfields survey on whistleblowing, we found that 54 per cent of respondents thought that the #MeToo movement had increased whistleblowing generally, including on non-MeToo issues. What do you predict will be the impact of the #MeToo movement on whistleblowing in the US over the next three years?

Instead of speaking to me you should have a cultural anthropologist or social psychologist! You tell me how people will behave when we finally emerge from lock-down. Will people go back to the office and be contrite that they survived the pandemic? Or will it be the roaring ‘20s again? If I had to place a bet on the spot, we are in for a wild ride in the workplace after this pandemic which means trends that we have previously seen in the workplace will be largely disrupted, not least by a shift to long-term, remote working models. Therefore, what we have seen in the last three years in terms of the impact of #MeToo on whistleblowing is definitely not a perfect indicator of what is to come. Perhaps we should have another chat in 3 years’ time!

What are the existing protections in place in the US for #MeToo whistleblowers? 

So whistleblowing in #MeToo cases doesn’t have that much protection in the US. There are the standard, state level employment law protections in relation to retaliation and companies have generally tried to up-their-game in recent years to strengthen their own internal policies. But a #MeToo whistleblower always has to consider whether they want to get embroiled in a long, drawn-out lawsuit. There has not really been any meaningful statutory protection for #MeToo whistleblowers in the US to date. But I think that is going to change in the US in coming years.

So what is it that you think we are going to see happen in the US? 

I think we are going to see #MeToo issues in relation workplace harassment and whistleblower protections, currently two separate streams in the US, converge.

I also think we are going to see the federalisation of #MeToo whistleblowing. If you look at the Biden administration’s appointments, a lot of women, who have been in the workplace, have been appointed to key positions. Those women are likely to be aware of and may, unfortunately, have experienced #MeToo type workplace issues. Therefore, the new administration has very powerful women in key positions, who, I speculate, will want to address this issue at the federal level. 

Do you think the #MeToo movement has done more to bolster a whistleblowing culture as a whole in the US than perhaps other developments, including legislative steps, for example Dodd-Frank or Sarbanes-Oxley? 

Not yet. But I am hopeful that the legal environment in the US is going to change with the incoming Biden administration, in relation to both harassment and gender equality issues in the workplace but also in respect to whistleblowing. When Dodd-Frank was adopted, it incorporated federal protections for whistleblowers but was limited to securities and exchange commission financial integrity issues in company SEC filings. At the time, my view was that this was just the first step and that rapidly thereafter, those statutory protections would be expanded to other types of reporting by whistleblowers. To date, that hasn’t happened. But I think everything is going to change now with the Biden/Harris team in office.

What would be your one piece of advice for employers handling #MeToo complaints within their organisations? 

Can I negotiate for two? The first would be for companies to adopt an internal triage protocol. Many #MeToo complaints can be dealt with internally but some cannot, perhaps because of the identity of the individuals involved or implicated. Therefore, companies need to have a protocol in place, to clearly provide for the referral to an external adviser to handle certain complaints to ensure impartiality of the investigation.

In my day job, I defend shareholder lawsuits and I am seeing more companies being sued in shareholder derivative lawsuits over a #MeToo culture rather than a particular #MeToo episode. In defending those claims, it is crucial for the company to show that the board did not turn a blind eye to those issues within an organisation. So my second piece of advice would be for companies to have regular reporting on and review at the board level of #MeToo culture within the organisation. And perhaps having a whistleblowing champion or #MeToo ‘ombudsperson’ who has face-time with the board and/or relevant committees of the board. 

For more, this issue was discussed further with Boris on a recent podcast with Caroline Stroud, Holly Insley, Stephanie Chiu and Nicola Jones.