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Greg Keating Discusses Implications of New EU Whistleblower Directive

Gregory Keating, chair of Choate’s Labor Employment & Benefits and Whistleblower Defense Groups, was recently quoted in Society of Human Resources Management Magazine about recent changes to EU whistleblower directives and how they impact US company oversight. 

From the article:

Although the United States was at the forefront of developing whistleblower protection laws, "the new EU law is broader and provides more whistleblower protections than any current U.S. law," noted Greg Keating, an attorney with Choate Hall & Stewart LLP in Boston. For example, the EU directive requires only that a whistleblower believes the misconduct reported is true, while under U.S. law the whistleblower must believe he or she is disclosing a violation of law.

Further, the new EU law provides a lower burden of proof than U.S. law. The directive requires only that the employee show that he or she was engaged in protected speech when the retaliation occurred, placing the burden on the employer to prove there is no connection between the two. Under U.S. law, a whistleblower must prove a causal connection between the protected speech and the employer's adverse action.

Considering the differing burden of proof, Keating suggested that for U.S. employers in the EU "the best offense is a strong defense." "Develop new reporting systems, conduct training, set up an effective investigation protocol, collect contemporaneous records and documentation," he said. "Take every complaint seriously and act on it. Otherwise, you'll be facing a very tough uphill climb regarding the burden of proof."

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