Employer Affirmative Defense in SOX Whistleblower Cases
Once a SOX whistleblower has proven that SOX protected conduct was a contributing factor in the decision to take an adverse action, an employer can avoid liability only if it proves clearly and convincingly that it would have taken the same adverse employment action even if the employee had not engaged in protected activity.[i] This is known as the same-decision or same-action defense.
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%.”[ii]
The employer bears this onerous burden only if an employee establishes that their protected activity contributed to the employer’s decision to take the adverse action against them.
An employer may rely on evidence that:
- the whistleblower recently performed poorly or otherwise gave the employer reason to take action;
- the employer’s reason for taking the adverse action materialized before the company allegedly engaged in misconduct or the employee blew the whistle; or
- the whistleblower’s personnel file supports the employer’s explanation and details the employer’s intent to take the adverse action.
A sham investigation of a whistleblower instigated in response to the whistleblowers’ protected conduct (also known as a retaliatory investigation) will not enable the employer to establish a same-decision defense. See, e.g., Genberg v. Porter, 882 F.3d 1249 (10th Cir. 2018).
“[W]here the protected activity is virtually inseparable from the basis for the imposition of discipline, the fact finder must be careful to assure that the employer has met the high clear and convincing affirmative defense standard.” Brousil v. BNSF Railway Co., ARB No. 16-025, -031, ALJ No. 2014-FRS-163 (ARB July 9, 2018) (citing Abdur-Rahman v. DeKalb Cnty, ARB Nos. 08-003, 10-074; ALJ Nos. 2006-WPC-002, -003 (ARB Feb. 16, 2011)(alleged insubordination included protected safety concerns); Smith v. Duke Energy Carolinas, LLC, ARB No. 11-003, ALJ No. 2009-ERA-007 (ARB June 20, 2012)(protected disclosures exclusively led to disciplinary investigation); Henderson Wheeling & Lake Erie Ry., ARB No. 11-013, ALJ No. 2010-FRS-012 (ARB Oct. 26, 2012)(termination letter referenced protected activity); see also Smith v. Duke, ARB No. 14-027, ALJ No. 2009-ERA-007 (ARB Feb. 25, 2015)(Royce, J. dissenting); Speegle v. Stone & Webster, ARB No. 11-029-A, ALJ No. 2005-ERA-006, slip op. at 15, n.97 (ARB Jan. 31, 2013).
“[B]ecause a respondent’s affirmative defense burden is high, and because ‘it is a fact intensive determination, involving questions of intent and motivation’ for taking adverse action, resolving this issue on summary decision is challenging.” Kao v. Areva Inc., ARB No. 16-090, ALJ No. 2014-ERA-00004 (ARB Apr. 30, 2018).
 Colorado v. New Mexico, 467 U.S. 310 (1984).
[ii] Palmer v. Canadian National Railway, ARB No. 16-035 at 57.
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- 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.
- Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.
- Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.
- Bachman and Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
- 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 (2011-2020), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2020) 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-Hubbell based on peer reviews.
- The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.
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