FAQs Archive

Is administrative leave or a paid suspension an adverse employment action?

While some courts have held that a paid suspension is not an adverse employment action, some judges have recognized how a paid suspension can … Continued

Is assigning a sales employee a low performing territory an adverse employment action?

Numerous courts have held that assigning an employee a lower performing territory or accounts constitutes an adverse action. See, e.g., McArdle v. Dell Prods., L.P., … Continued

Can an incomplete Section 303 MD&A disclosure give rise to Section 10(b) securities fraud liability?

Yes. “Item 303 provides a critical backstop to prevent unscrupulous issuers from exploiting the trust that reasonable investors place in submissions made in purported compliance … Continued

What is the standard for summary judgment in an employment discrimination or retaliation case?

To prevail on a motion for summary judgment, the movant must show that there is no genuine dispute as to any material fact and that the movant … Continued

What is the duty to mitigate damages?

To obtain economic damages (lost pay and benefits) in an employment-related lawsuit, you must show that you tried to mitigate your damages, i.e., you searched … 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 the False Claims Act authorize treble damages?

The False Claims Act provides that any entity violating 31 U.S.C. § 3729(a)(1) is liable for three times the amount of damages that the Government … 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

How is interest on back pay calculated?

In FRSA whistleblower cases brought before the DOL, interest on back pay is computed using the interest rate applicable to underpayment of taxes under 26 … Continued

Does Section 806 of SOX preempt other claims or remedies?

Section 806 of SOX specifically provides that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.” 18 U.S.C. § 1514A(d). A whistleblower who is fired for refusing to commit an illegal act could bring both a SOX claim and a common-law wrongful discharge claim. Bringing the latter claim could potentially result in an award of punitive damages. But note that in some states, where there is an adequate statutory remedy to vindicate the public policy objectives, the employee can pursue a retaliation action only through the statute.

Who administers the whistleblower-protection provision of SOX?

The U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) administers the anti-retaliation provision of SOX. A SOX whistleblower claim must be filed initially with OSHA. OSHA will then investigate the complaint and may order preliminary reinstatement of the whistleblowers if it finds “reasonable cause” to believe that retaliation occurred.

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