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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.”


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.