John F. Fullerton III, a Member of the Firm in the Labor and Employment practice, in the firm’s New York office, was quoted in Law360, in "SEC Declares Open Season on Employee Agreements," by Stephanie Russell-Kraft. (Read the full version — subscription required.)
Following is an excerpt:
There are still instances in which employers can claim attorney-client privilege with such agreements, according to labor and employment attorney John F. Fullerton III of Epstein Becker Green, who represents companies in whistleblower cases. KBR violated the SEC’s rules because it hired investigators, not lawyers, to conduct internal reviews.
"Sometimes witnesses don’t learn about allegations until some lawyer sits them down and tells them," said Fullerton, who added that the SEC’s anti-retaliation rules do contain provisions to allow for the protection of privilege.
Nonetheless, he said, the agency is "very serious" about what employers say in employment agreements, confidentiality agreements and separation agreements.
Employers who aren’t careful still run the risk of writing a confidentiality provision that runs afoul of the SEC’s rules, according to Fullerton. Such a provision wouldn’t necessarily need to prohibit employees from going to the SEC, but if it’s written in such ambiguous language that employees might be scared to — like KBR’s — employers might find themselves on the wrong side of an SEC investigation.
