What is the employer’s burden in a Sarbanes-Oxley whistleblower retaliation case?

An employer must prove clearly and convincingly that it would have taken the same adverse employment action even if the employee had not engaged in protected activity.[i] The operative phrase here is “would have.” An employer fails to meet its burden if it establishes merely that it could have taken the same adverse action. “Clear and convincing” evidence can be quantified as establishing the probability of a fact at issue “in the order of above 70%.”

What is a whistleblower’s burden to prove retaliation under the Sarbanes-Oxley Act?

To prevail, a SOX whistleblower must prove by a preponderance of the evidence that:

they engaged in protected activity (they made a protected disclosure under Section 806);
the employer knew that they engaged in the protected activity;
they suffered an unfavorable personnel action;
the protected activity was a contributing factor in the unfavorable action.

Does Sarbanes-Oxley protected conduct require a showing of materiality?

Sarbanes Oxley Protected Conduct Does Not Require a Showing of Materiality The great weight of authority holds that there is no independent materiality element to establish … Continued

What whistleblowing disclosures are protected under the Sarbanes-Oxley Act?

What is Sarbanes-Oxley protected conduct? Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation … Continued

Why did Congress enact the whistleblower protection provision of the Sarbanes-Oxley Act?

Purpose of SOX Whistleblower Protection Law When Congress enacted the Sarbanes-Oxley Act (SOX) in 2002, it included a whistleblower protection provision to combat a … Continued

Whistleblower Rewards and Protections for Compliance Officers and Compliance Personnel

The whistleblower lawyers at Zuckerman Law represent compliance personnel in whistleblower retaliation and whistleblower rewards claims, including claims brought under these whistleblower reward programs:

Anti-Money Laundering Whistleblower Reward Program: whistleblower rewards for reporting money laundering.
SEC Whistleblower Reward Program: whistleblower rewards for reporting violations of the federal securities laws.
CFTC Whistleblower Reward Program: whistleblower rewards for reporting violations of the Commodity Exchange Act.
IRS Whistleblower Reward Program: whistleblower rewards for reporting tax fraud or underpayments.
False Claims Act / Qui Tam Lawsuits: whistleblower rewards for reporting fraud on the government.

Click here for a recent interview of whistleblower lawyer Jason Zuckerman about CCOs facing whistleblower retaliation. We have obtained significant recoveries for senior compliance professionals in SOX whistleblower retaliation claims, including two settlements in excess of $1 million.

Call our top-rated whistleblower lawyers at 202-262-8959 for a free confidential confidential consultation. And see our tips to maximize your recovery in your whistleblower retaliation case.

Compliance personnel can be eligible for an SEC whistleblower award if they meet one of the following three requirements set forth at Section 21F-4 of the Securities Exchange Act:

they reasonably believe the disclosure is necessary to prevent conduct that is likely to cause “substantial injury” to the financial interest or property of the entity or investors;
they reasonably believe the entity is engaging in “conduct that will impede an investigation of the misconduct”; or
at least 120 days have passed either since they properly disclosed the information internally, or since they obtained the information under circumstances indicating that the entity’s officers already knew of the information.

Notably, the 120-day exception does not apply to external auditors who obtained the information during the audit of an issuer. Instead, external auditors can immediately report to the SEC after they inform a superior in their accounting firm about improper or illegal client activity and the accounting firm fails to promptly report the securities law violation to the SEC. The first two exceptions also apply to external auditors when the violation is “material.

Those requirements do not apply to compliance personnel reporting money laundering to the Department of Treasury or Department of Justice.

Recently the Association of Certified Fraud Examiners published a profile of Matt Stock’s success working with whistleblowers to fight fraud:

Increased Scrutiny of Gatekeepers Requires Robust Protection for Gatekeeper Whistleblowers

As regulators subject gatekeepers to heightened scrutiny and liability, gatekeeper whistleblowers require robust whistleblower protection. Examples of increased pressure on gatekeepers include:

Judicial scrutiny of legal advice designed to “generate the client’s desired result when the real-world facts would not support it,” such as attorneys orchestrating a “sham” trigger of a general partner’s right to buy back a partnership’s interests;
SEC focus on “up the ladder” reporting duty of lawyers practicing before the SEC; and
DOJ scrutiny of corporate compliance programs.

Prohibited Whistleblower Retaliation Against Compliance Personnel

Remedies for Compliance Officers Combatting Whistleblower Retaliation

Whistleblower Attorneys Representing Compliance Officers

best whistleblower lawyers The experienced whistleblower lawyers at Zuckerman Law have substantial experience representing Compliance Officers, auditors, and compliance personnel. The firm has a licensed Certified Public Accountant and Certified Fraud Examiner on staff to enhance its ability to investigate and disclose complex financial fraud to the SEC, and two of the firm’s attorneys served in high-level positions at a government agency that protects whistleblowers.

Firm Principal Jason Zuckerman has been named by Washingtonian Magazine as a “Top Whistleblower Lawyer” and the firm has been ranked by U.S. News as a Tier 1 Firm in Labor & Employment Litigation.

Whistleblower law firm Zuckerman Law has substantial experience investigating securities fraud schemes and preparing effective submissions to the SEC concerning a wide range of federal securities violations, including:

For more information about the SEC Whistleblower Program, download our free ebook SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award and see the following resources:

SEC Whistleblower Awards to Compliance Officers

Leading SEC Whistleblower Lawyer Quoted About Award to Compliance Professionals

An article in Law 360 titled Big Awards Pushing Compliance Pros To Be Whistleblowers discusses the impact of the SEC’s award of approximately $1.5M to a compliance officer. The article reports that both defense counsel and whistleblower counsel have seen an uptick in whistleblower complaints brought by internal audit and compliance personnel.

In the article, SEC whistleblower lawyer Jason Zuckerman notes that this substantial award to a compliance officer and prior SEC whistleblower awards to internal audit and accounting personnel show that compliance programs in some companies are ineffective.

whistleblower_lawyers_012017_infographic

One of the purposes of this exclusion was to prevent employees from having an incentive to “‘front run[]’…processes that are important components of effective company compliance programs.” Securities Whistleblower Incentives and Protections, 76 Fed. Reg. 34300, 34316 (June 13, 2011)

Draining the Swamp Requires Robust Whistleblower Protections and Incentives

The Trump Administration has promised to “drain the swamp,” combat corporate corruption, and root out waste, fraud, and abuse in the federal government. To achieve … Continued

Sarbanes-Oxley Whistleblower Prevails on Appeal

In an unpublished decision in Yang v. Navigators Grp., Inc., the Second Circuit recently clarified a Sarbanes-Oxley whistleblower’s burden at the summary-judgment stage. Takeaways for … Continued

OUR FIRM IS NOT HANDLING ANY CASES CONCERNING PUBLIC SECTOR OR PRIVATE SECTOR VACCINE MANDATES.

Civil Rights Laws Prohibit Religious Discrimination

The top-rated discrimination lawyers at Zuckerman Law are deeply committed to zealously advocating on behalf of victims of religious discrimination. It is illegal and contrary to bedrock American values for an employer to discriminate against an applicant, employee, or former employee based upon the individual’s religious beliefs.

Title VII of the 1964 Civil Rights Act makes it unlawful for an employer to refuse to hire, promote, fire, etc. a person because of their religion. This applies to established religions such as Islam, Judaism, Hinduism, and Christianity, as well as less common religions so long as the person’s religious, moral, or ethical belief is held sincerely.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area. Contact us today to find out how we can help you. To schedule a preliminary consultation about religious discrimination in the workplace, call us at 202-769-1681, or click here.

Click here to see our videos answering frequently asked questions about discrimination and retaliation.

best maryland employment lawyers

Harassment/Hostile Work Environment Religious Discrimination Cases

Employers cannot allow a hostile work environment based on religious discrimination to fester. Although sporadic teasing or unpleasant remarks do not constitute a hostile work environment, if the employee is subjected to unwelcome statements or conduct based on their religion that become severe or pervasive, then the employer may be liable for this harassment.

Reasonable accommodations for religious beliefs

Also, if a conflict exists between the employee’s sincerely held belief and the job requirements, the employer may be required to accommodate the employee’s religious beliefs. After the employee notifies the employer about the conflict and requests an accommodation, the employee and the employer should discuss possible accommodations. If the modification creates an undue hardship for the employer, then it need not be granted. Absent an undue hardship, however, the employer should provide a reasonable accommodation that eliminates the conflict between the religious belief and the work responsibility.

Assuming no undue hardship exists, these are examples of potential accommodations:

Changing shift/break schedules to allow for prayer time;

Allowing an employee to wear a face mask rather than shave his beard as otherwise required by the company policy; and/or

Switching job tasks that conflict with the religious beliefs.

In a December 2019 amicus curiae brief in Patterson v. Walgreens, the Solicitor General advocated the following standard to assess undue hardship:

Under those ordinary meanings, an employer’s “accommodation” of an employee’s religious practice must be suitable to meet the employee’s religious needs— that is, it must actually allow the employee to engage in the religious practice without adverse employment consequences. That is possible only if it eliminates the con- flict between the employee’s religious practice and work. . . Instead, the statute should be read to require the employer to reasonably accommodate the employee’s religious practice to the extent that it can without suffering an undue hardship. If the employer demonstrates that every complete accommodation would result in an undue hardship, it still must offer what might be called a “partial” accommodation that would not result in undue hardship. Cf. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J., concurring) (“Title VII calls for reasonable rather than absolute accommodation.”).

Interplay Between Religious and National Origin Discrimination

Discrimination based on religion is often associated with national origin, race, and color discrimination as well. If a particular religion is linked to a specific country/region, then the employee may be subjected to both religious and national origin discrimination (for example, a Muslim employee from Yemen).

If an employee requests a religious accommodation, this is generally viewed as protected activity, which means the employer may not then retaliate against the employee because of their request.

What to do if you experience religious discrimination

If you believe your employer subjected you to religious discrimination, you should consider the following options:

File a written complaint and follow your company’s policy for submitting internal complaints;
You may also want to file a charge of discrimination with the EEOC. Their website has helpful information on how to file the complaint and, although you cannot file the complaint online, you can file in person, by telephone, or by mail. Depending on where you live, your complaint must be filed within 180 or 300 days of the discriminatory act. If you have any questions about whether the EEOC is the right place to file, use their online assessment center, which will help you decide if the EEOC is the correct agency,
Talk about your legal options with an experienced employment law attorney. Given time bars that apply to discrimination claims, it is vital to get the right advice as early as possible in your case.

Resources about religious discrimination in employment

Muslim employee who was allegedly told to remove that “rag” from her head gets new day in court

EEOC Guidance on religious discrimination

EEOC FAQs for Middle Eastern employees

DOJ/Civil Rights Division Religion Roundtable periodical

Religious Discrimination Lawyers Serving Employees in Maryland, Virginia and Washington DC

Hiring a proven and effective advocate is critical to obtaining the maximum recovery in a religious discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

Bachman writes frequently on employment discrimination issues at the Glass Ceiling Discrimination Blog.

Contact us today to find out how we can help you with a religious discrimination case. To schedule a preliminary consultation, click here or call us at (202) 769-1681.

Washington DC	Maryland	Virginia
Eric Bachman 1629 K Street, NW Suite 300 Washington, DC 20006 (202) 769-1681 By Appointment Only	Eric Bachman 5425 Wisconsin Avenue Suite 600 Chevy Chase, MD 20815 (202) 769-1681 By Appointment Only	Dallas Hammer 1934 Old Gallows Rd #350 Tysons, VA 22182 (571) 288-1309 By Appointment Only

Whistleblower Lawyer Interviewed About the Rise of Cybersecurity Whistleblowing

Law Firm Representing Cybersecurity Whistleblowers Cybersecurity whistleblower lawyer Dallas Hammer was interviewed by Corporate Crime Reporter regarding the rise of cybersecurity whistleblowing. Hammer explained that raising concerns about … Continued

Is an employee’s participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act?

The whistleblower protection provision of the Sarbanes-Oxley Act protects the following activity: “to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation[.]”

What is front pay?

Many anti-discrimination and anti-retaliation statutes authorize reinstatement as an element of damages. If restatement is not feasible, a court may award front pay in lieu of reinstatement. There is no precise formula to determine the amount of front pay, A front pay award is intended to provide compensation for a period of time sufficient to allow the wronged employee an opportunity to obtain similar employment. As front pay is an equitable remedy, the judge usually determines front pay.

Page 46