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.
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.
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
Most of the whistleblower retaliation statutes adjudicated at the DOL, including SOX, authorize compensatory damages. Until recently, awards of compensatory damages by the DOL were fairly nominal absent expert witness testimony concerning the whistleblower’s emotional distress damages or diminished career prospects. However, two recent decisions, one from the Eighth Circuit and the other from the ARB, indicate that a whistleblower can obtain substantial compensatory damages based solely on his or her testimony.