Issa-Grassley Report on FDA Surveillance Offers Critical Guidance to Agencies to Avoid Using Electronic Surveillance to Retaliate Against Whistleblowers

In a report titled “Limited Surveillance at the FDA: Protecting the Rights of Federal Whistleblowers,” Representative Issa and Senator Grassley offer crucial guidance for agencies … Continued

Federal Courts Are Adopting the Administrative Review Board’s Broad Interpretation of Sarbanes-Oxley Protected Conduct

Scope of Sarbanes-Oxley Protected Whistleblowing Nearly three years ago, the Department of Labor’s Administrative Review Board issued its seminal decision in Sylvester v. Parexel Int’l … Continued

Forbes Quotes Whistleblower Attorney Jason Zuckerman About Self-Help Discovery in Whistleblower Litigation

In an article titled “Lawsuit Accuses Whistleblower Law Firm Of Coaching Employee To Steal Documents,” Forbes quotes whistleblower attorney Jason Zuckerman about the complex issue … Continued

Whistleblower Lawyer Jason Zuckerman Will Speak at ABA Webinar on Whistleblower Investigations

Leading whistleblower attorney Jason Zuckerman will join fellow panelists at a ABA webinar titled “Whistleblower Investigations: A How-to Guide.”  An expert panel will share their … Continued

Zuckerman Law represents whistleblowers worldwide and is based in Washington, D.C.

 

Washington DC	Maryland	Virginia
1629 K Street, NW Suite 300 Washington, DC 20006 (202) 262-8959 By Appointment Only	5425 Wisconsin Avenue Suite 600 Chevy Chase, MD 20815 (202) 262-8959 By Appointment Only	1934 Old Gallows Rd Suite 350 Tysons, VA 22182 (202) 262-8959 By Appointment Only

Contacting Zuckerman Law or providing information to Zuckerman Law about a potential legal claim does not create an attorney-client relationship with Zuckerman Law but all information provided to the firm will be kept confidential.

Until the firm has entered into a written agreement with you to handle a particular matter, you are not a client of the firm and the firm has not committed to meet any deadlines that may apply to your potential claims

 

SEC Whistleblower Lawyers

Whistleblower Retaliation Lawyers

 

 

Whistleblower Attorney Jason Zuckerman Quoted About Dodd-Frank Whistleblower Protection

UPDATE: In Digital Realty Trust, Inc. v. Somers, the Supreme Court clarified the scope of the whistleblower protection provision of the Dodd-Frank Act.  Click here to learn … Continued

How do Whistleblower Protection Laws Protect Employees of Government Contractors and Grantees?

The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) protect whistleblowers disclosing fraud on the government and other wrongdoing. The experienced government contractor whistleblower protection lawyers at Zuckerman Law represent whistleblowers at government contractors and grantees in whistleblower retaliation claims and False Claims Act qui tam actions.

To schedule a free confidential consultation, click here or call us at 202-262-8959.

For information about the NDAA whistleblower protection law, see our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.

Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act and click here to read our FAQ about the False Claims Act whistleblower retaliation law.

Top-Rated False Claims Act Whistleblower Retaliation Attorneys

We have assembled a team of leading whistleblower retaliation lawyers to provide top-notch representation to whistleblowers.

Washingtonian magazine named Jason Zuckerman a top whistleblower lawyer. Zuckerman served in a senior position at the Office of Special Counsel, where he oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

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. In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.

False Claims Act Whistleblower Protection

False Claims Act Whistleblower Retaliation Law Protecting Government Contractor Employees

The anti-retaliation provision of the False Claims Act protects steps taken in furtherance of a potential or actual qui tam action and efforts to stop 1 or more violations of the FCA.

Protected conduct includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices.  Recently the Second Circuit held that a refusal to violate the False Claims Act is protected under the FCA’s anti-retaliation provision.

Prevailing in a False Claims Act retaliation claim requires a showing that:

1. the employee engaged in protected activity;
2. the employer had knowledge that the employee was engaged in protected activity;
3. the employer took an action that had a negative effect on the terms, conditions, or privileges of employment, such as termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the False Claims Act; and
4. the employer retaliated against the employee because of this conduct.

Retaliation Prohibited by False Claims Act and NDAA Whistleblower Law

Remedies for Federal Contractor Employees in False Claims Act Retaliation Claims

A prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes:

• reinstatement or front pay,
• double back pay (double lost wages and benefits);
• interest on the lost wage;
• special damages, which includes damages for emotional distress and other non-economic harm resulting from the retaliation; and
• attorney’s fees and costs.

Click here to learn more about the damages that can be recovered in a government contractor whistleblower retaliation case.

As Judge Parrish held in United States ex rel. Barrick v. Parker-Migliorini Int’l, LLC, No. 2:12-cv-00381 (D.Utah March 25, 2022), reinstatement is the presumptive remedy in a False Claims Act retaliation case:

It is not lost on the court that, because of the animosity between the parties, reinstating Mr. Barrick at PMI may prove challenging. However, the court is bound by the Tenth Circuit’s recent Tudor decision, which explained that “[c]ourts must look beyond ill feeling and instead address simply whether a productive working relationship would still be possible, and they must do so through the lens of a strong preference for reinstatement.” 2021 U.S. App. LEXIS 27404, at *25 (emphasis added). Indeed, courts must ask if “extreme hostility would make a productive working relationship impossible—not just difficult or imperfect.” Id. at *26 (emphasis added). Accordingly, relying on Mr. Barrick’s contention that reinstatement at PMI is not untenable—and PMI’s lack of evidence to the contrary—the court grants Mr. Barrick’s motion for reinstatement. See id. at *27 (“Often, as in this case, the defendant is a large institution that should have sufficient resources to eliminate or otherwise ameliorate any hostility on its side toward the plaintiff. And when, as here, the plaintiff affirmatively seeks reinstatement, we can typically assume that the plaintiff is not asserting [he] would confront extreme hostility after reinstatement.”).

Filing a False Claims Act Whistleblower Retaliation Claim

The statute of limitations for a False Claims Act whistleblower retaliation claim is three years from the date on which the retaliation occurred.  An FCA retaliation claim can be brought directly in federal court; there is no requirement to file initially with an administrative agency.  If a whistleblower is also filing a qui tam claim, an FCA retaliation claim can be filed under seal.

NDAA Government Contractor Whistleblower Retaliation Law

Sections 827 and 828 of the Defense Contractor Whistleblower Protection Act provide robust whistleblower protection to employees of most government contractors and grantees.  By its terms, 41 USC § 4712(a)(1) “applies to any federal contract or grant and is not limited to a particular appropriation or class of grant.” Tex. Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 354 (5th Cir. 2021).

NDAA Protected Whistleblowing

The scope of protected whistleblowing under the NDAA whistleblower protection law is far broader than the scope of protected conduct under the False Claims Act.  Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:

• Gross mismanagement of a federal contract or grant, which is “a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.” Kavanagh v. Merit Systems Protection Board, 176 F. App’x 133, 135 (Fed. Cir. April 10, 2006) (citing White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994));
• A gross waste of federal funds, which is “more than [a] debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the government.” Chambers v. Department of the Interior, 515 F.3d 1362, 1366 (Fed. Cir. 2008) (quoting Van Ee v. Environmental Protection Agency, 64 M.S.P.R. 693, 698 (1994));
• An abuse of authority relating to a federal contract or grant, which is “an arbitrary or capricious exercise of power … that adversely affects the rights of any person or that results in personal gain or advantage to … preferred other persons.” Doyle v. Department of Veterans Affairs, 273 F. App’x 961, 964 (Fed. Cir. April 11, 2008) (quoting Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996)); or
• A “substantial and specific danger to public health or safety” (alleging the nature and likelihood of the harm, as well as when the harm may occur), or a “violation of law, rule or regulation” related to a federal contract. See Chambers, 515 F.3d at 1367, 1369.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

A covered person or body includes a “management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.” 41 U.S.C. § 4712(a)(2)(G).

Applying Federal Circuit precedent construing the Whistleblower Protection Act, the Eleventh Circuit recently held that “debatable differences of opinion concerning policy matters are not protected disclosures . . . to constitute ‘gross mismanagement,’ an employee must disclose such serious errors … that a conclusion … [of] err[or] is not debatable among reasonable people.”  Karen Fuerst v. The Housing Authority of the City of Atlanta, Georgia, No. 21-10285 (11th Cir. June 22, 2022) (quoting White v. Dep’t of Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004)).

Proving NDAA Whistleblower Retaliation

The burden of proof and causation standard in NDAA whistleblower cases is favorable to whistleblowers. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.

Remedies for Prevailing NDAA Whistleblowers

Remedies for prevailing whistleblowers in NDAA whistleblower retaliation claims include reinstatement, back pay, uncapped compensatory damages (emotional distress damages), and attorney fees and costs.

If an NDAA case is being litigated in federal court, the plaintiff can add a False Claims Act retaliation claim and potentially recover double back pay.

Filing an NDAA Whistleblower Retaliation Claim

An NDAA reprisal claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statute of limitations is three years after the date of the reprisal.  The OIG will investigate the complaint and make recommendations to the agency head.  If the agency head fails to provide the requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.

The requirement to exhaust administrative remedies in an NDAA retaliation lawsuit (filing the complaint with an OIG prior to filing the complaint in federal court) is jurisdictional.  Therefore, an NDAA complaint filed initially in federal court will likely be dismissed.

The rights and remedies provided in Sections 827 and 828 may not be waived by an agreement, policy, form, or condition of employment.

Restrictions on Government Contractors’ Non-Disclosure Agreements

Federal regulations prohibit the federal government from “contract[ing] with an entity that requires employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.”  48 C.F.R. § 3.909-1(a)

And Section 883 of the NDAA of 2021 amends the Defense Contractor Whistleblower Protection Act (“DCWPA”) by prohibiting DoD from awarding a contract to a contractor that requires its employees to sign a confidentiality agreement “that would prohibit or otherwise restrict such employees from lawfully reporting waste, fraud, or abuse related to the performance of a Department of Defense contract to a designated investigative or law enforcement representative of the Department of Defense authorized to receive such information.”  In addition, Section 883 requires DoD contractors to inform their employees of this limitation on confidentiality agreements, i.e., inform them of their right to lawfully report waste, fraud, abuse, and other wrongdoing.

Differences Between False Claims Act Whistleblower Protection and NDAA/Defense Contractor Whistleblower Protection

The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:

False Claims Act and NDAA Whistleblower Protection

• How does the NDAA whistleblower retaliation law protect whistleblowers at federal contractors and grantees?
• Must an NDAA Whistleblower Retaliation Plaintiff Prove a Subjective Belief of a Violation?
• What whistleblowing is protected under the False Claims Act anti-retaliation provision?
• Does the False Claims Act protect whistleblowers against retaliation?
• Is whistleblowing in the course of performing job duties protected under the False Claims Act?
• Does the participation of a supervisor with knowledge of protected whistleblowing in the decision to take an adverse personnel action prove knowledge under the False Claims Act whistleblower protection provision?
• Can a False Claims Act whistleblower retaliation plaintiff obtain double back pay (two times lost wages and benefits)?
• Are employees whose jobs require investigating fraud against the government required to meet a higher pleading standard?
• Are “duty speech” disclosures protected under the False Claims Act?
• What protections are available to federal contractor whistleblowers under the NDAA whistleblower protection law?
• Can False Claims Act whistleblowers use confidential documents to report fraud to the government?
• What is the purpose of the False Claims Act whistleblower protection provision?
• Does the False Claims Act protect a whistleblower who refuses to violate the Act?

Guide to NDAA/Defense Contractor Whistleblower Law

For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.

In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.

Topics covered include:

• Protected whistleblowing under the NDAA.
• The scope of coverage of the NDAA’s whistleblower protection provisions.
• The reasonable belief standard governing NDAA protected whistleblowing.
• Proving “contributing factor” causation
• The same-decision affirmative defense
• Remedies or damages available to prevailing NDAA whistleblowers.

Testimonial from Federal Contractor Whistleblower

A former client represented by Zuckerman Law in an NDAA whistleblower retaliation claim offered the following review of Jason Zuckerman on Avvo:

“I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit.

Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation.”

WHEN REVIEWING INFORMATION ABOUT TESTIMONIALS OR STATEMENTS REGARDING A LAWYER’S QUALITY, CONSIDER THAT 1) THE FACTS AND CIRCUMSTANCES OF YOUR CASE MAY DIFFER FROM THE MATTERS IN WHICH RESULTS AND TESTIMONIALS HAVE BEEN PROVIDED; 2) ALL RESULTS OF CASES HANDLED BY JASON ZUCKERMAN ARE NOT PROVIDED AND NOT ALL CLIENTS HAVE GIVEN TESTIMONIALS; AND 3) THE TESTIMONIALS PROVIDED ARE NOT NECESSARILY REPRESENTATIVE OF RESULTS OBTAINED BY JASON ZUCKERMAN OR OF THE EXPERIENCE OF ALL CLIENTS OR OTHERS WITH JASON ZUCKERMAN. EVERY CASE IS DIFFERENT, AND EACH CLIENT’S CASE MUST BE EVALUATED AND HANDLED ON ITS OWN MERITS.

Experienced False Claims Act and NDAA Whistleblower Protection Attorneys

The experienced whistleblower attorneys at leading whistleblower protection law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees.

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

• Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
• Litigating False Claims Act retaliation cases.
• Representing qui tam relators in False Claims Act cases.
• Representing whistleblowers disclosing fraud on the government in Congressional investigations.
• Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Founding Principal Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.

• Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.  As an auditor, Stock developed an expertise in financial statement analysis and internal controls testing and fraud recognition.  He uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and develop a roadmap for the SEC to take an enforcement action.
• Dallas Hammer has extensive experience representing whistleblowers in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
• Described by the National Law Journal as a “leading whistleblower attorney,” Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws.
• Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
• We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
• Our attorneys have been quoted by and published articles in leading business, accounting, and legal periodicals, including The Wall Street Journal, Forbes, CNBC, MarketWatch, Vox, Accounting Today, Going Concern, Law360 – Expert Analysis, Investopedia, The National Law Review, inSecurities, Government Accountability Project, S&P Global Market Intelligence, Risk & Compliance Magazine, The D&O Diary, The Compliance and Ethics Blog, Compliance Week and other printed and electronic media.

We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

• Ninth Circuit Rejects “Honest Belief” Defense in Whistleblower Retaliation Case
• Can a Government Contractor Bring a False Claims Act Whistleblower Retaliation Claim?
• False Claims Act Whistleblower Prevails in First Circuit Appeal
• Is Whistleblowing About Upcoding Protected Under the False Claims Act’s Anti-Retaliation Provision
• Boosting Contractor Employee Whistleblower Protections, Law 360 (December 2016)
• Fourth Circuit Clarifies Broad Scope of False Claims Act Protected Whistleblowing
• New Tools to Combat Whistleblower Retaliation, Taxpayers Against Fraud Education Fund Quarterly Review, Vol. 57 (October 2010)
• GAO Report Calls for Improvements in Government Contractor Whistleblower Protections
• False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection
• NDAA Provides Robust Whistleblower Protection
• FAR Amendment Bars Agencies from Subsidizing Whistleblower Retaliation
• NDAA Contractor Whistleblower Protection Law Highly Effective in Rooting Out Fraud
• Congress Enacts Anti-Gag Provision in Cromnibus Spending Bill
• Whistleblower Lawyer Jason Zuckerman Will Speak About False Claims Act Litigation at Taxpayers Against Fraud Conference
• Whistleblower Protections Under the Whistleblower Protection Act, Practical Law (October 2016)
• Whistleblower Lawyer Jason Zuckerman Quoted in National Law Journal
• Whistleblower Lawyer Jason Zuckerman Quoted About Federal Employee Whistleblower Rights
• Washington Post Quotes Whistleblower Attorney Jason Zuckerman About Chilling Effect of Insider Threat Program
• How to foster a more ethical culture
• Whistleblower Lawyer Jason Zuckerman Quoted About MacLean Whistleblower Protection Act Case
• Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff
• CFPB official wants to silence a whistleblower before he can talk to Congress

Defense Contractor Whistleblower Protection Act

Frequently Asked Questions Qui Tam Whistleblower Awards

• What types of false claims are prohibited by the False Claims Act?
• What is the first-to-file bar in False Claims Act qui tam cases?
• What is the requirement to file a False Claims Act qui tam action under seal?
• What is the statute of limitations for a False Claims Act qui tam action?
• What is the public disclosure bar in the False Claims Act?
• What is materiality under the False Claims Act?
• What is “Scienter” Under the False Claims Act?
• Is a Violation of the Anti-Kickback Law Also a Violation of the False Claims Act?
• Does the False Claims Act Prohibit Bid Rigging?
• Does the False Claims Act Prohibit Fraudulent Inducement of a Contract?
• Can a violation of Good Manufacturing Practices give rise to False Claims Act Liability?
• Is there a heightened pleading requirement for False Claims Act qui tam cases?
• Does the False Claims Act authorize treble damages?

Sarbanes-Oxley (SOX) Whistleblower Protection

Section 806 of the Sarbanes-Oxley Act protects whistleblowers at covered employers who report to their supervisor or the government conduct that they reasonably believe constitutes wire fraud, mail fraud, bank fraud, securities fraud, or a violation of any rule or regulation of the SEC, or any provision of Federal law relating to fraud against shareholders.

Some SOX whistleblowers have obtained substantial recoveries, including jury verdicts of $11M and $5M in SOX whistleblower protection cases.  Leading SOX whistleblower protection lawyer Jason Zuckerman has established favorable precedent construing SOX and has obtained more than ten settlements in SOX whistleblower protection matters in excess of $1 million, two of which were above $4 million.

The experienced and effective Sarbanes-Oxley whistleblower protection lawyers at Zuckerman Law have extensive experience representing corporate whistleblowers.  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 in the 2021 edition of “Best Law Firms.”

In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law, including his articles about the SOX whistleblower protection law.  We represent SOX whistleblowers nationwide.

Call us today to schedule a confidential consultation with our Sarbanes-Oxley whistleblower protection attorneys about your SOX whistleblower case.  We can be reached at 202-262-8959 or by clicking here.

The SOX whistleblower protection lawyers at Zuckerman Law have represented CEOs, CFOs, in-house counsel, partners at audit firms, and other senior professionals in high-stakes whistleblower protection matters.  Click here to read reviews and testimonials from former clients, including corporate officers and executives.

Drawing on substantial experience representing corporate whistleblowers in SOX whistleblower cases, our SOX whistleblower lawyers have published a free guide to SOX titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers:

Sarbanes-Oxley Whistleblower Protection Remedies

A prevailing SOX whistleblower can recover:

• lost wages and benefits;
• reinstatement or front pay; and
• special damages, which includes emotional distress, impairment of reputation, personal humiliation, and other non-economic harm resulting from retaliation.

There is no cap on special damages under SOX, and some state whistleblower protection laws enable whistleblowers to recover punitive damages.  Recently corporate whistleblowers have obtained substantial recoveries in SOX whistleblower cases:

• Jury Awards Former Bio-Rad Counsel $11M in Sarbanes-Oxley Whistleblower Case
• Jury Awards Six Million Dollars to Whistleblower in Sarbanes-Oxley Case
• Sarbanes-Oxley Whistleblower Recovers Nearly $5 Million
• JP Morgan SOX Whistleblower Wins $1.13M at Trial

• UBS Whistleblower Prevails at Trial in SOX Whistleblower Case

SOX Whistleblower Retaliation Damages

Protected Whistleblowing Under Sarbanes-Oxley Whistleblower Protection Law

The Sarbanes-Oxley whistleblower law protects corporate whistleblowers for providing information about securities fraud, shareholder fraud, bank fraud, a violation of any SEC rule or regulation, mail fraud, or wire fraud.  The Department of Labor has construed SOX whistleblowing broadly, holding that:

• Disclosing a potential violation is protected, i.e., an employee who reasonably believes that a securities violation is imminent will be protected by SOX if he or she reports the violation before it actually occurs.
• An employee’s mistaken belief in a violation of law can be objectively reasonable.  The reasonable person standard recognizes that many employees are unlikely to be trained to recognize legally actionable conduct by their employers. To satisfy the objective component of the “reasonable belief” standard, the employee must prove that a reasonable person in the same factual circumstances with the same training and experience would believe that the employer violated securities laws.
• To be protected under SOX, the employee’s report need not “definitively and specifically” relate to one of the listed categories of fraud or securities violations in Section 806 of SOX.  The focus is “on the plaintiff’s state of mind rather than on the defendant’s conduct.” Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008).

SOX Prohibited Retaliation Against Corporate Whistleblowers

The whistleblower protection provision of the Sarbanes-Oxley Act prohibits a broad range of retaliatory adverse employment actions, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower.  Recently a federal court of appeals held that merely outing or disclosing the identity of a whistleblower is actionable retaliation under SOX.

Proving a Violation of Sarbanes-Oxley (SOX) Whistleblower Protection Law

To prevail under SOX’s whistleblower provision, an employee must prove by a preponderance of the evidence that

1. she engaged in protected activity;
2. the employer knew that she engaged in the protected activity;
3. she suffered an unfavorable personnel action; and
4. the protected activity was a contributing factor in the unfavorable action.

A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. Causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.  The decision-maker’s knowledge of the protected activity and close temporal proximity will suffice to prove causation in some cases.

Once the employee proves the elements of a Sarbanes-Oxley whistleblower retaliation claim by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the complainant’s protected behavior or conduct.

Filing a Sarbanes-Oxley Whistleblower Retaliation Complaint

A Sarbanes-Oxley whistleblower retaliation complaint must be filed initially with OSHA.  The complainant has the option to remove a SOX whistleblower claim to federal court once the complaint has been pending at the Department of Labor for 180 days.

Frequently Asked Questions About the Sarbanes-Oxley Corporate Whistleblower Protection Law from Experienced SOX Whistleblower Lawyers

Protected Whistleblowing Under the Sarbanes-Oxley Act

• Who is protected under the whistleblower protection provision of the Sarbanes-Oxley Act?
• What whistleblowing disclosures are protected under the Sarbanes-Oxley Act?
• What are examples of SOX-protected activity (protected whistleblowing)?
• Does the Sarbanes-Oxley Act protect whistleblowing about potential violations of federal securities laws?
• Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?
• Is an employee’s participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act?
• What are some types of proof to show that a disclosure is objectively reasonable?
• Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower protection case?
• Does Sarbanes-Oxley protected conduct require a showing of materiality?
• Is a Sarbanes-Oxley whistleblower required to prove fraud?
• Are disclosures made in the course of performing one’s job duties protected?
• Must a SOX whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?
• Does the Sarbanes-Oxley whistleblower law protect employees working outside the United States?

Prohibited Whistleblower Retaliation Under Sarbanes-Oxley

• What acts of retaliation are prohibited by the Sarbanes-Oxley whistleblower protection law?
• Is constructive discharge a prohibited act of retaliation under SOX?
• Does SOX prohibit employers from “outing” confidential whistleblowers?
• Is retaliation that occurred outside of the statute of limitations period relevant evidence of retaliation?
• Does subjecting an employee to heightened scrutiny evidence retaliation?
• Does SOX prohibit post-termination retaliation?
• What is preemptive retaliation?

Proving Sarbanes-Oxley Whistleblower Retaliation

• What is a whistleblower’s burden to prove retaliation under the Sarbanes-Oxley Act?
• How can a whistleblower prove retaliation?
• Must a whistleblower prove retaliatory motive in a DOL whistleblower retaliation case?
• Why should courts be skeptical of an adverse employment action taken based on subjective criteria?
• What are some methods to prove pretext in retaliation and discrimination cases?
• Does a SOX whistleblower need to prove that the employer’s reason for the adverse action is untrue?
• What is the employer’s burden in a Sarbanes-Oxley whistleblower retaliation case?
• Does subjecting an employee to heightened scrutiny evidence retaliation?

Relief or Damages for SOX Whistleblowers

• What damages can a whistleblower recover under SOX?
• Does the Sarbanes-Oxley whistleblower protection law authorize emotional distress damages?
• What is front pay?
• Can OSHA order the reinstatement of a Sarbanes-Oxley whistleblower?
• If reinstatement is not feasible, can a judge award front pay in lieu of reinstatement?
• Does SOX authorize an award of punitive damages?

Litigating Sarbanes-Oxley Whistleblower Retaliation Cases

• Can I sue an individual under the Sarbanes-Oxley Act?
• What is the statute of limitations for a SOX whistleblower retaliation case?
• Who administers the whistleblower-protection provision of SOX?
• What level of detail is required in a Sarbanes-Oxley complaint?
• Can a Sarbanes-Oxley whistleblower bring a retaliation case in federal court?
• Does the Sarbanes-Oxley Act authorize jury trials?
• Where are SOX whistleblower cases litigated?
• Do formal rules of evidence apply in Sarbanes-Oxley whistleblower trials at the Department of Labor?
• What is the scope of discovery in a Sarbanes-Oxley whistleblower case?
• What is the “reasonable cause” standard in an OSHA whistleblower investigation?
• Can a Sarbanes-Oxley whistleblower appeal an Administrative Law Judge’s decision?
• Where can a Sarbanes-Oxley whistleblower appeal a decision of the Administrative Review Board?
• Do mandatory arbitration agreements encompass SOX whistleblower claims?
• Does OSHA prohibit gag clauses in settlement agreements?
• Does Section 806 of SOX preempt other claims or remedies?

Additional FAQs About the Sarbanes-Oxley Whistleblower Protection Law  

• Why did Congress enact the whistleblower protection provision of the Sarbanes-Oxley Act?
• Can whistleblowers obtain rewards or bounties for reporting fraud to the SEC?
• Does the breach of an anti-retaliation policy in a Code of Ethics give rise to a retaliation claim?
• Does concealment of potential liability violate federal securities laws?
• Can corporate whistleblowers use company documents to expose fraud?
• Does the SEC protect whistleblowers?
• What is the half-truth doctrine in federal securities law?

SOX Whistleblower Protections for SEC Whistleblowers

Sarbanes-Oxley (SOX) Whistleblower Attorneys: Tier 1 Firm

We have assembled a team of leading SOX whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers.  Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The SOX whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.  To schedule a free preliminary consultation, click here or call us at 202-262-8959.

• Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.  As an auditor, Stock developed an expertise in financial statement analysis and internal controls testing and fraud recognition.  He uses his auditing experience to help IRS, CFTC and SEC whistleblowers investigate and disclose complex financial frauds to the government and develop a roadmap for the SEC to take an enforcement action.  Matt has been interviewed on CNBC, quoted extensively about whistleblower rewards in the media, and is the lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
• Dallas Hammer has extensive experience representing whistleblowers in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
• Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws.  Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
• Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
• We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
• Our attorneys have been quoted by and published articles in leading business, accounting, and legal periodicals, including The Wall Street Journal, Forbes, CNBC, MarketWatch, Vox, Accounting Today, Going Concern, Law360 – Expert Analysis, Investopedia, The National Law Review, inSecurities, Government Accountability Project, S&P Global Market Intelligence, Risk & Compliance Magazine, The D&O Diary, The Compliance and Ethics Blog, Compliance Week and other printed and electronic media.

SOX Whistleblower Lawyer Client Reviews

We pride ourselves not only on the results we achieve, but also on ensuring that we provide the highest level of customer service and that our clients are kept informed of all developments in their case and play an active role in every key strategic decision in their case.    Every case is unique and every client has unique objectives that will govern how we litigate a case.

The following five client reviews are from senior corporate officials, including a CFO at a public company, that were provided through Avvo.

• “As a finance exec, I have spent my career working closely with hundreds of lawyers. On balance, Mr. Zuckerman is the best lawyer I have ever encountered. Although he runs a small law firm, I watched as he ran circles around multiple lawyers both in-house and at a large, nationally-recognized firm. Although the evidence in this matter was compelling, the other side did not have the self-awareness to understand what that meant, making for an almost impossible negotiation. Each time I was convinced we hit the final road block, Mr. Zuckerman would pull a rabbit out of his hat to progress the negotiation. He was responsive, available 24/7, and operated not only as a world class attorney, but as an “ad-hoc therapist” in what is necessarily a stressful process. He is the only lawyer I’ve ever encountered that not only has the tools to go up against the largest law firms in the nation, but also truly cares about his client, and will do the right thing to defend his client at all costs.”
• “I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It’s easy to see why he is regarded as an expert in the field.”
• “Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won’t hesitate for even a second, before I seek Jason’s support.”
• “Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me.

 Jason ran circles around the “major national law firm” team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. 

Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I’ve worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman.”
• “Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current “legal” circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute.”

SOX Whistleblower Protection for SEC Whistleblowers

How to File a Sarbanes-Oxley Whistleblower Case

SOX whistleblower cases are initially filed with OSHA.  Complaints can be filed by mail, facsimile, or through an online complaint form.  A whistleblower can also call or visit in person their local OSHA Regional or Area Office to file a complaint.  To prove timely filing, it is important to retain documentation evidencing the filing of the complaint.

SOX Whistleblower Protection Law

18 U.S. Code § 1514A – Civil action to protect against retaliation in fraud cases

(a) Whistleblower Protection for Employees of Publicly Traded Companies.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c),[1] or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

(A) a Federal regulatory or law enforcement agency;

(B) any Member of Congress or any committee of Congress; or

(C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or

(2) 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 of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.

(b) Enforcement Action.—

(1) In general.—A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c), by—

(A) filing a complaint with the Secretary of Labor; or

(B) if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

(2) Procedure.—

(A) In general.—

An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.

(B) Exception.—

Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the employer.

(C) Burdens of proof.—

An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.

(D) Statute of limitations.—

An action under paragraph (1) shall be commenced not later than 180 days after the date on which the violation occurs, or after the date on which the employee became aware of the violation.

(E) Jury trial.—

A party to an action brought under paragraph (1)(B) shall be entitled to trial by jury.

(c) Remedies.—

(1) In general.—

An employee prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the employee whole.

(2) Compensatory damages.—Relief for any action under paragraph (1) shall include—

(A) reinstatement with the same seniority status that the employee would have had, but for the discrimination;

(B) the amount of back pay, with interest; and

(C) compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.

(d) Rights Retained by Employee.—

Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.

(e) Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes.—

(1) Waiver of rights and remedies.—

The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.

(2) Predispute arbitration agreements.—

No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.

Sarbanes-Oxley Act Whistleblower Retaliation Provision

(a)Whistleblower Protection for Employees of Publicly Traded Companies.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c),[1] or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

(A) a Federal regulatory or law enforcement agency; (B) any Member of Congress or any committee of Congress; or (C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or (2) 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 of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.

(b)Enforcement Action.—

(1)In general.—A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c), by—

(A) filing a complaint with the Secretary of Labor; or (B) if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

(2)Procedure.— (A)In general.— An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.

(B)Exception.— Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the employer. (C)Burdens of proof.— An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code. (D)Statute of limitations.— An action under paragraph (1) shall be commenced not later than 180 days after the date on which the violation occurs, or after the date on which the employee became aware of the violation. (E)Jury trial.— A party to an action brought under paragraph (1)(B) shall be entitled to trial by jury.

(c)Remedies.—

(1)In general.— An employee prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the employee whole.

(2)Compensatory damages.—Relief for any action under paragraph (1) shall include—

(A) reinstatement with the same seniority status that the employee would have had, but for the discrimination; (B) the amount of back pay, with interest; and (C) compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.(d)Rights Retained by Employee.— Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.

(e)Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes.—

(1)Waiver of rights and remedies.—

The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.

(2)Predispute arbitration agreements.—

No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.

Resources About SOX Whistleblower Protection Law

The Sarbanes-Oxley whistleblower lawyers at leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections and is quoted frequently in the media on this topic. A sample of those blog posts and articles appears below:

• Sarbanes Oxley Whistleblower Win Shows Strong Need For Whistleblower Protections
• DOL Adopts Strengthened Sarbanes-Oxley Whistleblower Regulations
• Jury Awards Former Bio-Rad Counsel $11M in Sarbanes-Oxley Whistleblower Case
• Sarbanes-Oxley Whistleblower Decision Clarifies Broad Scope of Protected Whistleblowing
• Decision Denying Motion for Summary Judgment Broadly Construes Sarbanes-Oxley Protected Whistleblowing
• Sarbanes-Oxley Protects Disclosures About Inadequate Information Security Controls
• Jury Awards Six Million Dollars to Whistleblower in Sarbanes-Oxley Case
• Sarbanes-Oxley Authorizes Damages for Reputational Harm
• OSHA Orders Bank to Reinstate Sarbanes-Oxley Whistleblower
• Sarbanes-Oxley Whistleblower Prevails on Appeal
• Sarbanes-Oxley Whistleblower Obtains $2.7M in Front Pay
• SOX Whistleblower Decision Adopts Favorable Pleading Standard for Whistleblowers
• OSHA Orders Wells Fargo to Pay $5.4M to Whistleblower
• District Court Rejects Materiality Requirement for Sarbanes-Oxley Whistleblower Actions
• SARBANES-OXLEY WHISTLEBLOWER CASE CLARIFIES THE BURDEN FOR PLEADING KNOWLEDGE OF PROTECTED WHISTLEBLOWING
• Whistleblowing Fraud Investigator Defeats Motion to Dismiss Sarbanes-Oxley Whistleblower Case
• Third Circuit Decision Highlights Key Procedural Distinctions Between Sarbanes-Oxley and Dodd-Frank Whistleblower Protection Provisions
• Federal Courts Are Adopting the Administrative Review Board’s Broad Interpretation of Sarbanes-Oxley Protected Conduct
• Are cybersecurity whistleblowers protected against retaliation?
• Court Rules that Whistleblowers Can Use Confidential Company Documents to Expose Fraud
• Fifth Circuit Holds that “Outing” a Whistleblower is an Adverse Action Under SOX
• Court Rules for In-House Counsel Whistleblower
• Leading SEC Whistleblower Law Firm Featured in Article About Growing Wave of Whistleblower Lawsuits
• Pro Se Sarbanes Oxley Whistleblower Prevails in Jury Trial
• Whistleblower Lawyer Interviewed About Dodd-Frank Whistleblower Protection Provision  
• A Wells Fargo whistleblower warned about fake accounts in 2011 — nobody from the government ever spoke with her
• Whistleblower Lawyer Dallas Hammer Quoted About Cybersecurity Whistleblowing
• Tax Notes Quotes Whistleblower Lawyer Zuckerman About SOX Whistleblower Case
• Article Reports on Petition to Strengthen Whistleblower Rights
• Whistleblower Lawyer Zuckerman Quoted About OSHA Whistleblower Investigations
• Whistleblower Lawyer Quoted About Sarbanes-Oxley Whistleblower Development
• Whistleblower Lawyer Jason Zuckerman Quoted About Sarbanes-Oxley Whistleblower Protection
• Forbes Quotes Whistleblower Attorney Jason Zuckerman About Self-Help Discovery in Whistleblower Litigation
• Federal Courts Are Adopting the Administrative Review Board’s Broad Interpretation of Sarbanes-Oxley Protected Conduct
• DOL Clarifies Burden-Shifting Framework For Whistleblowers, Law 360 (October 2016)
• The Evolution Of SOX: A Powerful Remedy For Retaliation, Law 360 (May 2016)
• Whistleblower Protections and Incentives for Auditors and Accountants, Accounting Today (May 2016)
• 2016 Annual Update on the Whistleblower Provisions of SOX, American Bar Association Section of Labor and Employment Law Subcommittee on the Sarbanes-Oxley Act of 2002 (February 2016)
• Sixth Circuit Hands A Landmark Victory To SOX Whistleblowers, Law 360 (June 2015)
• A Year For Whistleblower Rewards And Protections, Law 360 (December 2014)
• Congress Strengthens Whistleblower Protections for Federal Employees, ABA Section of Labor and Employment Law (December 2012)
• Whistleblowers: What Protections And Forms of Relief Are Available For Foreign-Based Employees, ABA Section Of International Law Spring 2011 Meeting (March 2011)
• Law 360 Quotes Whistleblower Attorney Jason Zuckerman About Fifth Circuit Sarbanes-Oxley Whistleblower Decision
• Law 360 Quotes Whistleblower Lawyer Jason Zuckerman on Seminal Sarbanes-Oxley Whistleblower Decision
• Whistleblower Attorney Zuckerman Quoted in Article About Sarbanes-Oxley Whistleblower Protection Decisions
• Law 360 Quotes Whistleblower Lawyer Jason Zuckerman on Seminal Sarbanes-Oxley Whistleblower Decision
• Law360 Quotes Whistleblower Lawyer Jason Zuckerman About Sarbanes-Oxley Causation Standard
• Whistleblower Attorney Jason Zuckerman Quoted in Law360 Article About Whistleblower Self-Help Discovery
• Whistleblower Advocate Jason Zuckerman Quoted in Article About In-House Attorney Whistleblower Lawsuits
• Whistleblower Lawyer Hammer Quoted by Bloomberg About Rebound in Sarbanes Oxley Whistleblower Retaliation Claims
• Whistleblower Lawyer Quoted About Sarbanes-Oxley Whistleblower Development
• Whistleblower Lawyer Interviewed About the Rise of Cybersecurity Whistleblowing

Video Transcript

It seemed to come out of the blue. When David received a surprise visit from his boss, his stomach sank. He knew this couldn’t be good, and he was right. After some small talk to allow the office staff to punch out for the end of the week, David was let go. No notice, no real explanation, except something about downsizing and David being a poor fit for the company. Yet no one else was being laid off, and David had a consistent record of strong performance.

David wasn’t even given time to clear out his office or say goodbye to colleagues. He was told that they’d clean out his desk and leave his personal effects at the front desk for him to pick up at a later time. He managed to grab the picture he kept on his desk on his way out the door. It was the picture that always kept him going during difficult times, and there had been plenty of those as of late. It was that picture of his children that had always led him to remain honest and true to his values at work.

Lately, David was under pressure at work to manipulate earnings to meet targets that would enable management to get large bonuses. David knew that reporting false earnings to the SCC and shareholders violates SCC rules and harms shareholders. Therefore, he refused to acquiesce in his employer’s earnings management scheme.

As a result, management became very hostile to him. He’d been denied a promotion that was rightfully his and he’d suffered alienation and isolation from his senior management and peers who were eager to get large bonuses from this earnings management scheme. He never thought it would come to him losing his job, but he stood his ground and now needed someone to help protect him and his rights.

Despite his loyal service to the company, he found himself out of work and worried about how he would support his family. That’s when he turned to the Zuckerman Law Firm, a Washington D.C. firm that represents whistleblowers nationwide and has substantial experience litigating Sarbanes-Oxley whistleblower claims. David called them immediately and setup a consultation.

The firm explained to David his legal rights and options and crafted a strategy for David to utilize whistleblower laws to obtain a wide range of remedies, including lost wages, emotional distress damages, and damages for harm to reputation. David also learned from the firm that some whistleblowers laws may provide substantial rewards to whistleblowers. Thanks to the Zuckerman Law Firm, David is well on his way to seeking relief for the retaliation that he suffered.

If you or someone you know has been a victim of whistleblower retaliation, don’t delay. Many whistleblower retaliation laws have short statutes of limitations. Contact Zuckerman Law to learn about your rights. Call 202-262-8959 or visit zuckermanlaw.com.

What is the Whistleblower Protection Act?

Resources for Federal Employee Whistleblowers

The whistleblower protection lawyers at Zuckerman Law represent employees in whistleblower protection and whistleblower retaliation claims nationwide.  Our team includes two attorneys who served in senior positions at the U.S. Office of Special Counsel, the agency that enforces the Whistleblower Protection Act. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers.

 If you are seeking representation in a Whistleblower Protection Act case, contact us by clicking here or call us at (202) 262-8959.

This page provides resources for whistleblowers in the federal government.  For additional information about the Whistleblower Protection Act, see our article Whistleblower Protections Under the Whistleblower Protection Act.

For information on corporate whistleblower protections, including the Sarbanes-Oxley Act, click here.  And for information on protections for employees of government contractors and grantees, click here.

Filing a Whistleblower Protection Act Claim

Whistleblower Protections for Federal Employees

The Whistleblower Protection Act protects federal employees, including Veterans Affairs whistleblowers,  against retaliation for making any disclosure that a federal employee reasonably believes evidences:

• a violation of any law, rule, or regulation;
• gross mismanagement;
• a gross waste of funds;
• an abuse of authority;
• a substantial and specific danger to public health or safety; or
• censorship related to research, analysis, or technical information that cause, or will cause, gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.

The Whistleblower Protection Enhancement Act of 2012 clarifies that a disclosure does not lose protection where:

• the disclosure was made to a person, including a supervisor, who participated in the wrongdoing disclosed;
• the disclosure revealed information that had previously been disclosed;
• of the employee or applicant’s motive for making the disclosure;
• the disclosure was made while the employee was off duty;
• of the amount of time which has passed since the occurrence of the events described in the disclosure; or
• the disclosure was made during the employee’s normal course of duties, providing the employee is able to show that the personnel action was taken in reprisal for the disclosure.

Prohibited Forms of Whistleblower Retaliation (Personnel Actions)

The WPA prohibits the taking of a broad range of personnel actions in retaliation for whistleblowing, including removals, demotions, reassignments, pay decisions, as well as significant changes in duties, responsibilities, or working conditions.  In addition, the Whistleblower Protection Enhancement Act prohibits an agency from implementing or enforcing any nondisclosure policy, form, or agreement that fails to notify an employee that the agreement does not supersede, conflict with, or otherwise alter whistleblower rights and protections.

Proving Whistleblower Retaliation Under the Whistleblower Protection Act

The burden of proof under the Whistleblower Protection Act is very favorable to whistleblowers.  An employee can prevail by showing that protected whistleblowing was a contributing factor in the personnel action.  The agency can avoid liability only if proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the employee’s protected whistleblowing.

To determine whether an agency has met its burden via clear and convincing evidence, judges evaluate (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers.

Damages or Relief for Federal Employee Whistleblowers

A prevailing whistleblower can recover lost wages, attorney’s fees, equitable relief (e.g., reinstatement, rescinding a suspension, modifying a performance evaluation, etc.) and uncapped compensatory damages (emotional distress damages).   In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation.  Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.

Filing a Whistleblower Protection Act Complaint

Whistleblower retaliation is a prohibited personnel practice under the Civil Service Reform Act.   A complaint alleging a prohibited personnel practice can be filed at the U.S. Office of Special Counsel.  If you have suffered retaliation for protected whistleblowing that is also appealable to the Merit System Protection Board, you  may elect to pursue a remedy through one of three remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance under a collective bargaining agreement; or (3) a complaint filed with OSC, which can be followed by an Individual Right of Action appeal filed with the Board.  This election of remedies does not affect the right to pursue an EEO complaint, i.e., an employee can pursue both an EEO complaint and an OSC complaint simultaneously.

Frequently Asked Questions About the Whistleblower Protection Act

1. What is the Whistleblower Protection Act?
2. What disclosures are protected under the Whistleblower Protection Act?
3. Are disclosures to an Inspector General protected under the Whistleblower Protection Act?
4. Does the Whistleblower Protection Act Prohibit Retaliation for Refusing to Obey an Order Requiring a Violation of Law?
5. Does the Whistleblower Protection Act Prohibit Retaliation for the Exercise of Appeal or Grievance Rights?
6. How does a whistleblower prove knowledge of protected whistleblowing?
7. What is the causation standard in a Whistleblower Protection Act case?
8. What is a personnel action under the Whistleblower Protection Act?
9. How can a federal employee whistleblower seek relief for whistleblower retaliation?
10. How do I file a claim under the Whistleblower Protection Act?
11. What is an individual right of action appeal?
12. What remedies are available under the Whistleblower Protection Act?

Guide to Whistleblower Protection Act

Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here.

The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act.  This guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases.  Topics covered include:

• What Disclosures are Protected Under the Whistleblower Protection Act?
• Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?
• Prohibited Forms of Whistleblower Retaliation
• Proving Knowledge of Protected Whistleblowing
• Proving Causation
• What is an Agency’s Burden to Avoid Liability Once the Whistleblower Has Proved Causation?
• Seeking Relief from Retaliation
• Election of Remedies
• Can OSC Seek a Stay of a Personnel Action?
• Damages or Remedies for Retaliation
• Gag Orders and Non-Disclosure Agreements

Co-authors Eric Bachman and Jason Zuckerman have represented employees in Whistleblower Protection Act claims and served in senior leadership positions at the U.S. Office of Special Counsel, the federal agency that enforces the Whistleblower Protection Act.

Leading Washington DC Whistleblower Protection Act Lawyers: Hire Former Senior OSC Officials to Prosecute Your Whistleblower Case

Zuckerman Law has represented whistleblowers before the Office of Special Counsel, Offices of Inspectors General, and Congressional oversight committees.  The firm is uniquely qualified to represent whistleblowers in the federal government because founding principal Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

The firm has represented whistleblowers testifying before the House Financial Services Committee and vigorously opposed efforts to silence whistleblowers.  The whistleblower protection lawyers at Zuckerman Law have also helped federal employees combat unlawful gag provisions in agency policies or agreements.

If you are seeking representation in a whistleblower protection case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

Maryland Virginia Washington DC Employment Lawyers

Zuckerman Law represents Maryland, Virginia and District of Columbia executives and senior professionals in negotiating severance agreements, employment agreements, non-compete agreements, non-disclosure agreements and other contracts related to employment.

When an employer presents you with a severance agreement, you should assume that the agreement protects the employer’s interests, not your interests. Therefore, it can be useful to get advice on the scope of the restrictions that you would agree to abide by under the agreement, and on whether you are waiving a valuable claim against your former employer.

Click here to read testimonials from CEOs, CFOs, and other senior professionals that we have represented.  To schedule a consultation, call us at 202-262-8959, or click here.

Zuckerman Law can also assist you to determine whether the termination of your employment gives rise to legal claims.  If your former employer terminated you for an unlawful reason, you should not waive your right to bring a claim, including a potential claim of wrongful termination, discrimination, or retaliation.

Employee Rights in Severance Agreements

Some severance agreements contain unlawful provisions that interfere with employee’s rights under anti-discrimination, anti-retaliation, and whistleblower protection laws.  Before entering into a severance agreement, consult with an experienced attorney to evaluate whether your former employer is violating your rights.   Examples of improper or unlawful provisions in severance agreements include:

• a waiver of a claim that would arise or accrue subsequent to the effective date of the agreement.
• a waiver of the right to file a charge of discrimination or retaliation.
• a waiver of vested right under a benefit or pension plan.
• a waiver of the right to testify, assist, or cooperate in an investigation of a charge of discrimination or retaliation.
• an agreement not to report a violation of law or regulation to law enforcement or regulatory agencies.

Entering into a severance agreement can result in an employee waiving or relinquishing valuable rights and agreeing to restrictions on future employment.  Therefore, it is critical to get experienced counsel to review a severance agreement and negotiate favorable terms for the employee.

Basics of executive compensation

When joining or exiting a company, executives face unique challenges to ensure their rights are protected given the variety of compensation they receive beyond a salary.

Knowing precisely what your compensation consists of and how to maximize its value during negotiations is essential.

Below is a high-level review of the key concepts, and more detail will be provided on each subject in future posts.

Base salary

An executive’s base salary is the most straight-forward type of compensation.  It is usually characterized as an annual salary and often paid in the same intervals as other salaried employees (for example, monthly or bi-weekly).

Salaries among executives vary greatly based in part on the industry and potential value of the other forms of compensation offered.

Bonuses (short-term incentives)

Many different types of bonuses exist, including a signing bonus and different forms of annual incentives.  Companies use bonuses to incentivize executives to achieve the company’s short-term business goals.  The bonus itself is commonly paid as a percentage of the base salary.

Various targets are usually set to encourage superior performance and may include criteria like:  development of a new product; achieving a certain level of sales; and other performance goals within the executive’s division or department.

Long-term incentives

Long-term incentives routinely comprise the biggest portion of an executive’s compensation.  Companies offer long-term incentives to retain talent and encourage executives to realize the company’s strategic goals and objectives.

Long-term incentives are normally granted as some form of equity compensation, such as:

• stock options (the executive can buy or sell the company’s stock at an agreed (exercise) price within a set period of time)
• restricted stock shares/units (an award of stock with restrictions usually contingent upon working for the company a particular length of time)
• performance shares/units (an award of stock with restrictions often related to achieving company performance goals)

Typically, the equity grants will vest over a specific period of time, essentially making the executive an investor in the company’s performance. The vesting period varies by company but usually covers a period of 3 to 5 years. Long-term incentives that have not vested are typically forfeited once the executive departs the company.

Termination issues

The manner in which a company characterizes an executive’s termination of employment is extremely important.  For example, if the employer terminates the executive for “cause,” then s/he will often lose most rights to unvested long-term incentives and other future compensation.  If the executive resigns with “good reason” or is terminated without case, however, then the executive is routinely able to secure significant severance benefits.

Thus, how an employment agreement defines a termination for “cause” and a resignation with “good reason” is vital to know if considering a departure.  And when negotiating an employment agreement, it is essential to define this terms to give the executive adequate protection.

Before signing a severance agreement, consult with an experienced Severance Agreement Lawyer.  Call 202-262-8959 or click here to schedule a consultation.

Maryland Virginia Washington DC Discrimination Lawyers

If you have suffered discrimination or retaliation for reporting discrimination, we might be able to help you seek compensation for your losses.  We have experience representing clients under a wide range of federal and state anti-discrimination and anti-retaliation laws, including in claims of:

• Glass ceiling discrimination;
• Sexual harassment;
• Gender discrimination, including Equal Pay Act claims;
• LGBT discrimination;
• Religious discrimination;
• Disability discrimination;
• Pregnancy discrimination; and
• Age discrimination

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

AgeDiscriminationLawyers_Infographic

 

We handle claims under a variety of whistleblower laws, including the following:

• Sarbanes-Oxley Act (protecting whistleblower disclosures about violations of SEC rules and regulations; violations of federal laws related to fraud against shareholders; or mail, wire, bank or securities fraud).  Download our free ebook, Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.
• Taxpayer First Act (protecting whistleblowing about tax fraud or tax underpayment)
• Dodd-Frank Act (protecting whistleblowing to the SEC and CFTC)
• Whistleblower Protection Act (protecting whistleblowers in the federal government)
• False Claims Act and NDAA (protecting whistleblowers working for federal contractors)
• Energy Reorganization Act (protecting disclosures about nuclear safety or violations of Nuclear Regulatory Commission rules)
• Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (protecting disclosures about aviation safety)
• Surface Transportation Assistance Act (protecting whistleblower disclosures in the trucking industry about commercial motor vehicle safety)
• Consumer Financial Protection Act (protecting disclosures concerning consumer financial protection)
• Anti-Money Laundering Whistleblower Protection Law (protecting disclosures about violations of the Bank Secrecy Act)
• Federal Railroad Safety Act (protecting disclosures about rail safety and security)
• National Transit Systems Security Act (protecting transit employees from retaliation for disclosing a hazardous safety or security condition)
• Consumer Product Safety Improvement Act (protecting disclosures about consumer product safety)
• Food Safety Modernization Act (FSMA) (protecting disclosures about food safety)
• Criminal Antitrust Anti-Retaliation Act (protecting disclosures about criminal antitrust violations)
• Whistleblowers that have suffered retaliation in violation of whistleblower protection policies in corporate codes of ethics.

Whistleblower protection attorney Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  Some of the whistleblower retaliation cases he has worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraudand Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers.

• Does a whistleblower have to sustain economic damages to bring a claim?
• Can whistleblowers recover damages for reputational harm?
• How is interest on back pay calculated?
• What are emotional distress damages and how do I prove them?
• What is front pay?
• Can OSHA order the reinstatement of a Sarbanes-Oxley whistleblower?
• What is the duty to mitigate damages?

• How does the Department of Labor determine emotional distress damages in whistleblower retaliation cases?

Whistleblower Rights and Whistleblower Retaliation Laws

• When does the statute of limitations in DOL whistleblower retaliation cases commence?
• Does the failure to name the employer’s business entity correctly in an OSHA administrative complaint constitute a failure to exhaust administrative remedies?
• Does OSHA prohibit gag clauses in settlement agreements?
• What rules and procedures govern OSHA investigations?
• Does OSHA protect the confidentiality of a witness in an OSHA whistleblower investigation?
• Are employer non-disclosure contracts and policies barring whistleblowing enforceable?
• Will I get a reward for reporting fraud being committed by my employer?
• Does the breach of an anti-retaliation policy in a Code of Ethics give rise to a retaliation claim?
• What laws prohibit defense contractors from retaliating against whistleblowers?
• What whistleblower laws protect corporate officers and executives?
• What are the differences between Dodd-Frank and Sarbanes-Oxley whistleblower protection?

Resources About Whistleblower Retaliation Claims

Richard Renner maintains a detailed chart of federal whistleblower protection laws at www.taterenner.com/fedchart.php.

OSHA has published a summary chart of whistleblower protection laws:

Whistleblower_Statutes_Summary_Chart_FINAL_6-7-21

Law 360 Quotes Whistleblower Attorney Jason Zuckerman About Fifth Circuit Sarbanes-Oxley Whistleblower Decision

  In a story titled “Both Sides Claim Victory In 5th Circuit SOX Row,” Law 360 reports about the Fifth Circuit’s decision in Villanueva v. U.S. … Continued