Whistleblower Retaliation Archives

Is a warning letter an adverse employment action?

Yes, a written warning or counseling session will be considered presumptively adverse where: (a) it is considered discipline by policy or practice; (b) it is … Continued

What is preemptive retaliation?

Preemptive Retaliation The doctrine of preemptive retaliation permits a whistleblower to bring a claim where the employer retaliates against the whistleblower prior to the whistleblower … Continued

Is False Claims Act Whistleblower Protection Limited to Disclosures About the Whistleblower’s Employer?

No. The whistleblower protection provision of the False Claims Act (FCA) protects “lawful acts done by the employee, contractor, agent or associated others in furtherance … Continued

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 … Continued

Does a whistleblower’s disclosure of his misconduct deny the whistleblower protection under whistleblower retaliation laws?

Under certain whistleblower protection laws, there is a deliberate misconduct defense under which an employee who deliberately causes a violation of a health or safety law … Continued

Is threatened disciplinary action an adverse action under the whistleblower retaliation laws?

Yes, threatening a whistleblower with disciplinary action can constitute an actionable adverse action. In Stallard v. Norfolk Southern Railway Co., ARB No. 16-028, ALJ No. 2014-FRS-149 … Continued

Image of Does the failure to name the employer's business entity correctly in an OSHA administrative complaint constitute a failure to exhaust administrative remedies?

Does the failure to name the employer’s business entity correctly in an OSHA administrative complaint constitute a failure to exhaust administrative remedies?

Courts recognize that many employers operate under a complex legal structure and therefore it can be difficult to name the precise legal entity that employed … Continued

Does a whistleblower have to sustain economic damages to bring a claim?

No. As the ARB held in Dugger v. Union Pacific Railroad Co., ARB No. 16-079, ALJ No. 20156-FRS-36 (ARB Aug. 17, 2017), the “issue of whether … Continued

When does the statute of limitations in DOL whistleblower retaliation cases commence?

The statute of limitations begins to run from the time that the complainant knows or reasonably should have known of the adverse action. The … Continued

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.

Does SOX prohibit employers from “outing” confidential whistleblowers?

Disclosing a whistleblower’s identity may constitute an adverse employment action. The U.S. Court of Appeals for the Fifth Circuit reached this conclusion in a SOX case brought by Anthony Menendez, a former director in Halliburton Inc.’s finance and accounting department.

Is constructive discharge a prohibited act of retaliation under SOX?

Is constructive discharge a prohibited act of retaliation under SOX? Retaliatory termination goes beyond “You’re fired!” Under the SOX whistleblower protection law, constructive discharge … Continued

Page 3