The Sarbanes-Oxley whistleblower law authorizes noneconomic compensatory damages, i.e., emotional distress and reputational harm. There is no cap on special damages under SOX, and some whistleblowers have obtained more than one million dollars in special damages at trial
An employer must prove clearly and convincingly that it would have taken the same adverse employment action even if the employee had not engaged in protected activity.[i] The operative phrase here is “would have.” An employer fails to meet its burden if it establishes merely that it could have taken the same adverse action. “Clear and convincing” evidence can be quantified as establishing the probability of a fact at issue “in the order of above 70%.”
To prevail, a SOX whistleblower must prove by a preponderance of the evidence that:
they engaged in protected activity (they made a protected disclosure under Section 806);
the employer knew that they engaged in the protected activity;
they suffered an unfavorable personnel action;
the protected activity was a contributing factor in the unfavorable action.
The whistleblower protection provision of the Sarbanes-Oxley Act protects the following activity: “to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation[.]”
Many anti-discrimination and anti-retaliation statutes authorize reinstatement as an element of damages. If restatement is not feasible, a court may award front pay in lieu of reinstatement. There is no precise formula to determine the amount of front pay, A front pay award is intended to provide compensation for a period of time sufficient to allow the wronged employee an opportunity to obtain similar employment. As front pay is an equitable remedy, the judge usually determines front pay.
Discrete conduct occurring outside the statute of limitations can be offered as circumstantial evidence of retaliation. For example, if a supervisor threatens to terminate the employment of a whistleblower if the whistleblower raises additional compliance concerns and the supervisor ultimately carries out the threat, the threat itself is relevant to prove retaliation even if it was made outside of the statute of limitations period.
A SOX retaliation plaintiff need not demonstrate that they disclosed an actual violation of securities law; only that they reasonably believed that their employer was defrauding shareholders or violating an SEC rule. Indeed, a reasonable but mistaken belief is protected under SOX. “To demonstrate that a plaintiff engaged in a protected activity, a plaintiff must show that [s]he had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law.”
The Whistleblower Protection Act protects an individual perceived as a whistleblower, regardless of whether the individual actually made a disclosure. In analyzing perceived whistleblower cases, the MSPB … Continued