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Among other things, the CFTC charged the company with using non-disclosure provisions that impeded employee whistleblower communications with the CFTC in violation of the Commodity Exchange Act and accompanying regulations.

According to the Order, from 2017 to 2020, Trafigura required employees and departing employees to sign employment agreements and separation agreements containing non-disclosure provisions that prohibited employees from disclosing Trafigura's confidential information to third parties. The non-disclosure provisions did not contain carveout language expressly permitting communications with law enforcement or regulators like the CFTC, which the CFTC asserted violated regulations that make it unlawful to "take any action to impede an individual from communicating directly with the [CFTC]'s staff about a possible violation of the Commodity Exchange Act, including by enforcing, or threatening to enforce, a confidentiality agreement or predispute arbitration agreement with respect to such communications."

As part of the settlement, Trafigura agreed to modify its non-disclosure provisions to "include language making clear that no term in any such Agreement should be understood to limit or prevent the filing of a complaint with; or voluntary, lawful communication with; or disclosure of information to any federal, state, or local governmental regulatory or law enforcement agency."

S&K Take: This settlement marks the CFTC's first enforcement action against an employer for interfering with whistleblower communications. The CFTC appears to be following in the footsteps of the Securities and Exchange Commission, which has been targeting this issue for some time. Employers should review any non-disclosure or confidentiality provisions in employment-related documents to ensure they contain the necessary carveout language.

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