Sarbanes Oxley Whistleblower ProtectionLaw Archives

Is a Sarbanes-Oxley whistleblower required to prove fraud?

Is a SOX whistleblower required to prove shareholder fraud? A SOX complainant need not allege or prove shareholder fraud to receive SOX’s protection. SOX was … Continued

Can OSHA order the reinstatement of a Sarbanes-Oxley whistleblower?

If OSHA determines there is “reasonable cause” to believe the complaint has merit, with limited exceptions “it shall issue” a preliminary order restoring the complainant to his or her employment status and requiring the employer to take affirmative action to abate the violation. 49 U.S.C. § 42121(b)(3)(B); 29 CFR § 1980.105(a)(1). Reinstatement orders are immediately effective and are not stayed pending the resolution of any objections or appeal. See 49 U.S.C. § 4212 (b)(2)(A).

Does subjecting an employee to heightened scrutiny evidence retaliation?

Jumping on the first instance of poor performance or misconduct indicates pretext, especially where the employee has a record of strong performance prior to engaging in protected activity.

Must a whistleblower prove retaliatory motive in a DOL whistleblower retaliation case?

A SOX whistleblower need not demonstrate the existence of a retaliatory motive on the part of the employer to establish that protected activity was a contributing factor to the personnel action. But evidence of a retaliatory motive, e.g., statement of retaliatory animus or resentment of the complainant’s whistleblowing, is relevant circumstantial evidence to prove retaliation.

Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower protection case?

Motive for engaging in protected activity not relevant in a Sarbanes-Oxley whistleblower-protection case A whistleblower’s motive for engaging in protected conduct is irrelevant. See Henderson … Continued

Why should courts be skeptical of an adverse employment action taken based on subjective criteria?

Subjective standards are difficult for courts to evaluate and difficult for plaintiffs to rebut, and their use in employment decisions should be viewed with suspicion. See Hill v. Seaboard Coast Line R. Co., 885 F.2d 804, 808-09 (11th Cir. 1989); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1009 (1988) (Blackmun J., concurring) ( “Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII’s goal of eradicating discrimination in employment.”); Miles v. M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985) (“subjective evaluations . . . provide a ready mechanism for … discrimination.”).

Does concealment of potential liability violate federal securities laws?

Regulation S-K Item 103 requires the corporation to briefly describe material pending legal proceedings, other than ordinary routine litigation incidental to the business, to … Continued

What is the half-truth doctrine in federal securities law?

When a corporation speaks through a public filing or informally, e.g., by issuing a press release, the half-truth doctrine requires the corporation to include … Continued

Where can a Sarbanes-Oxley whistleblower appeal a decision of the Administrative Review Board?

A SOX whistleblower may, within 60 days of the ARB’s issuing its final decision, file a petition for review to the U.S. Court of Appeals in the circuit in which the alleged SOX violation occurred, or in the circuit in which the complainant resided on the date of the alleged violation.

Can a Sarbanes-Oxley whistleblower bring a retaliation case in federal court?

A Sarbanes-Oxley whistleblower case must be filed initially with OSHA. If the Department of Labor has not issued a final decision within 180 days of the filing of the complaint and the delay is not a result of the complainant’s bad faith, the complainant may file an action for de novo review in federal district court. 18 U.S.C. § 1514A(b)(1)(B).

What is the scope of discovery in a Sarbanes-Oxley whistleblower case?

The scope of discovery in Sarbanes-Oxley whistleblower cases is broad. In an order granting a motion to compel discovery in a Sarbanes-Oxley whistleblower case, an ALJ held that “[u]nless it is clear that the information sought can have no possible bearing on a party’s claims or defenses, requests for discovery should be permitted.”

Can a Sarbanes-Oxley whistleblower appeal an Administrative Law Judge’s decision?

How can a SOX whistleblower appeal an ALJ’s decision? A SOX whistleblower can file a petition for review with the ARB within 14 days after the … Continued

Page 4