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Is a warning letter an adverse employment action?

Yes, a written warning or counseling session will be considered presumptively adverse 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. See Williams v. American Airlines Inc., ARB No. 09-018, ALJ No. 2007-AIR- 004, slip op. at 10-11 (ARB Dec. 29, 2010); see also Stallard v. Norfolk Southern Railway Co., ARB Case No. 16-028; ALJ Case No. 2014-FRS-149, slip op. at 8 (Sep. 29, 2017)

Under the whistleblower protection provision of the Sarbanes-Oxley Act, a covered entity may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” because the employee engaged in protected activity. 18 U.S.C.A. § 1514A(a).  In Hendrix v. American Airlines, 2004-SOX-010; 2004-AIR-023 (Dec. 9, 2004), an ALJ found that “[t]he distinctive language of the Sarbanes-Oxley Act supports a broad reading of the meaning of adverse action for claims arising under this Act. . . . By explicitly prohibiting threats and harassment, the Sarbanes-Oxley Act has included adverse actions which are not necessarily tangible and most certainly are not ultimate employment actions.”

Whistleblower Retaliation Lawyers

Our experienced whistleblower retaliation lawyers have substantial experience litigation whistleblower retaliation cases nationwide, including claims under the Sarbanes-Oxley whistleblower protection law.  To schedule a confidential consultation, call us at 202-262-8959 or send us a message.

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Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  Three of the cases he worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud and Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers.  The False Claims Act qui tam cases that Zuckerman has worked on in conjunction with other attorneys have resulted in recoveries in excess of $100 million, and he has secured settlements above $1 million in eight SOX whistleblower retaliation matters.

In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law, and Washingtonian magazine has named two of our attorneys to its list of Top Whistleblower Attorneys.  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 in the 2020 edition “Best Law Firms.”

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.