Are disclosures made in the course of performing one’s job duties protected?
Disclosures made in the course of performing one’s job duties are protected under the SOX whistleblower law
A consensus is emerging that the duty speech doctrine does not apply to SOX whistleblower claims.[i] The duty speech defense asserts that disclosures made while performing routine job duties are outside the ambit of protected conduct. The defense became increasingly popular in the wake of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which held that government employees cannot bring First Amendment whistleblower retaliation claims based on work-related speech if the speech is part of their job duties.[ii]
Most Department of Labor (DOL) ALJs addressing this issue have declined to apply Garcetti to SOX claims. For example, Judge Lee Romero Jr. concluded that “one’s job duties may broadly encompass reporting of illegal conduct, for which retaliation results. Therefore, restricting protected activity to place one’s job duties beyond the reach of the Act would be contrary to congressional intent.”[iii]
Recently, a New York district court held in Yang v. Navigators Grp., Inc. that the duty speech defense is inapplicable to SOX claims.[iv] Jennifer Yang worked as the chief risk officer for Navigators Group (“Navigators”), an insurance company. Ms. Yang alleged that Navigators terminated her employment for disclosing to her supervisor deficient risk management and control practices. Navigators moved to dismiss Ms. Yang’s SOX claim in part on the basis that Yang’s disclosures about risk issues were “part and parcel of her job.”[v] The court rejected this duty speech argument, relying on a 2012 district court decision holding that “whether plaintiff’s activity was required by job description is irrelevant.”[vi]
[i]See, e.g., Robinson v. Morgan Stanley, ARB Case No. 07-070, 2010 WL 348303, at *8 (Jan. 10, 2010) (“[Section 1514A] does not indicate that an employee’s report or complaint about a potential violation must involve actions outside the complainant’s assigned duties.”).
[ii]See Garcetti v. Ceballos, 547 U.S. 410, 422 (2006).
[iii]Deremer v. Gulfmark Offshore, Inc., ALJ Case No. 2006-SOX-2, 2007 WL 6888110, at *42 (June 29, 2007).
[iv]See Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519, 530 (S.D.N.Y. May 8, 2014).
We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.
Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbellbased on peer reviews.
We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:
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