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Must a whistleblower prove retaliatory motive in a DOL whistleblower retaliation case?

 

A whistleblower need not demonstrate the existence of a retaliatory motive or that the employer’s reason for the unfavorable personnel action was pretext.  Zinn v. American Commercial Lines, Inc., ARB No. 10-029, ALJ No. 2009-SOX-025, 2012 WL 1143309, *7 (ARB Mar. 28, 2012) (“The ALJ also erred to the extent he required that Zinn show “pretext” to refute [respondent’s] showing of nondiscriminatory reasons for the actions taken against her.”); Warren v. Custom Organics, ARB No. 10-092, ALJ No. 2009-STA-030, 2012 WL 759335, *5 (ARB Feb. 29, 2012) (Under the 2007 amendment to the STAA burden of proof, an employee is not required to prove that his employer’s reasons for an adverse action were pretext, e.g., that the employer had an alternate, albeit improper, motive for the adverse action, to prevail on a complaint.”); Klopfenstein v. PCC Flow Tech., Inc., ARB No. 04-149, ALJ No. 04-SOX-11, 2006 WL 3246904, *13 (ARB May 31, 2006) (“a complainant is not required to prove pretext”) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

In Whistleblower Protection Act cases, it is also clear that “a whistleblower need not demonstrate the existence of a retaliatory motive on the part of the [person(s) ] taking the alleged prohibited personnel action in order to establish that [the whistleblower’s] disclosure was a contributing factor to the personnel action.” Marano v. U.S. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993).

Guide to Sarbanes-Oxley Whistleblower Protection

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  Earlier this year, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, leading whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: “Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.”  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.

Experienced Whistleblower Protection Lawyers

best whistleblower law firmBefore hiring a lawyer to prosecute your whistleblower case, assess the lawyer’s prior experience representing whistleblowers, knowledge of whistleblower laws and prior results.  And consider the experience of other whistleblowers working with that attorney.  See our client testimonials by clicking here.

  • U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
  • Both Eric Bachman and Jason 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.
  • Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination 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 Senior Trial Attorney in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
  • Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 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.  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 speaks nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.
  • The firm is routinely quoted in the media about whistleblower rights and protections.
  • Eric Bachman and Jason Zuckerman served in senior positions at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, they oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.

To learn more about whistleblower rewards or whistleblower protections, call the whistleblower lawyers at Zuckerman Law for a free consultation at 202-262-8959, or click here. And for information about the SEC’s Whistleblower Reward Program, download our free ebook SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

 

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Avatar of Jason Zuckerman

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.