Federal whistleblower protection laws, including the whistleblower protection provisions of the Sarbanes-Oxley Act, prohibit many forms of retaliation, including:
- termination of employment;
- constructive discharge;
- failure to promote;
- denying a whistleblower an opportunity to work overtime;
- issuing a written warning or counseling session where (a) it is considered discipline by policy or practice, (b) it is routinely used as the first step in a progressive discipline policy, or (c)it implicitly or expressly references potential discipline; and
- discrimination against a whistleblower in the terms and conditions of employment.
In a seminal decision, the DOL ARB clarified the broad scope of actionable adverse actions:
To settle any lingering confusion in AIR 21 cases, we now clarify that the term “adverse actions” refers to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged. Unlike the Court in Burlington Northern, we do not believe that the term “discriminate” is ambiguous in the statute. While we agree that it is consistent with the whistleblower statutes to exclude from coverage isolated trivial employment actions that ordinarily cause de minimis harm or none at all to reasonable employees, an employer should never be permitted to deliberately single out an employee for unfavorable employment action as retaliation for protected whistleblower activity. The AIR 21 whistleblower statute prohibits the act of deliberate retaliation without any expressed limitation to those actions that might dissuade the reasonable employee. Ultimately, we believe our ruling implements the strong protection expressly called for by Congress.
Williams v. American Airlines, ARB No. 09-018, ALJ No. 2007-AIR-004, slip op. at 15 (Dec. 29, 2010)
If you are seeking representation in a whistleblower retaliation case, contact us at 202-262-8959.