Sarbanes-Oxley whistleblower lawyers Archives

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

At the various stages of a whistleblower retaliation case, the DOL uses several factors to determine emotional distress damages. Emotional distress damages fall under compensatory (non-economic) damages and can include damages for mental anguish or pain and suffering. Generally a plaintiff seeking emotional distress damages must demonstrate: 1) objective manifestations of the distress, and 2) a causal connection between the adverse employment action and the distress.

Do whistleblower protection laws bar associational discrimination or associational retaliation?

Associational discrimination occurs when an employer discriminates against an employee based on a close relationship with another person.

Image of Do whistleblower protection laws prohibit retaliation against an employee who is about to provide information to the government or threatens to file a complaint with federal authorities?

Do whistleblower protection laws prohibit retaliation against an employee who is about to provide information to the government or threatens to file a complaint with federal authorities?

Whistleblower Retaliation Against an Employee About to Blow the Whistle Yes, whistleblower protection laws prohibit retaliation against an employee who is about to report or … Continued

Does OSHA protect the confidentiality of a witness in an OSHA whistleblower investigation?

OSHA is required to protect the confidentiality of a witness in a whistleblower investigation to the fullest extent possible under the law. In fact, where witnesses wish to remain confidential in an OSHA investigation, the investigator is required at the start of the interview to say, “Your interview will be protected to the fullest extent of the law.” See US DOL Memo, Clarification of the Express Promise of Confidentiality Prior to Confidential Witness Interviews, https://www.whistleblowers.gov/memo/2016-07-15.

To engage in protected conduct, must a whistleblower cite a specific violation of law or regulation?

The Department of Labor’s Administrative Review Board and several federal courts have soundly rejected a “magic words” defense, an argument employers invoke in whistleblower retaliation … Continued

What are examples of SOX protected activity (protected whistleblowing)?

SOX Protected Whistleblowing Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation regarding any conduct … Continued

Does the Sarbanes-Oxley whistleblower law protect employees working outside the United States?

Courts have held that SOX whistleblower protection does not apply extraterritorially, but in certain circumstances, the whistleblower protection provision of SOX can apply to covered employees working outside the United States.

Are disclosures about bank fraud protected under the Sarbanes-Oxley whistleblower law?

SOX Whistleblower Law Protects Disclosures About Bank Fraud Yes, a disclosure about bank fraud is protected conduct (protected whistleblowing) under the whistleblower protection provision of … Continued

Does Section 806 of SOX preempt other claims or remedies?

Section 806 of SOX specifically provides that “[n]othing 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.” 18 U.S.C. § 1514A(d). A whistleblower who is fired for refusing to commit an illegal act could bring both a SOX claim and a common-law wrongful discharge claim. Bringing the latter claim could potentially result in an award of punitive damages. But note that in some states, where there is an adequate statutory remedy to vindicate the public policy objectives, the employee can pursue a retaliation action only through the statute.

Who administers the whistleblower-protection provision of SOX?

The U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) administers the anti-retaliation provision of SOX. A SOX whistleblower claim must be filed initially with OSHA. OSHA will then investigate the complaint and may order preliminary reinstatement of the whistleblowers if it finds “reasonable cause” to believe that retaliation occurred.

Does subjecting an employee to heightened scrutiny evidence retaliation?

Where an employer jumps on an employee’s first instance of misconduct or poor performance and subjects the employee to heightened scrutiny, the employer’s reliance on that alleged change in performance can be deemed a pretext for retaliation.

What damages can a whistleblower recover under SOX?

A prevailing SOX whistleblower can recover “all relief necessary to make the employee whole,” which includes:

back pay (lost wages and benefits);
reinstatement with the same seniority that the employee would have had, were it not for the retaliation;
special damages (damages for impairment of reputation, personal humiliation, mental anguish and suffering, and other noneconomic harm that results from retaliation); and
attorney’s fees, and costs