Sarbanes Oxley Whistleblower ProtectionLaw Archives

What is a whistleblower’s burden to prove retaliation under the Sarbanes-Oxley Act?

To prevail, a SOX whistleblower must prove by a preponderance of the evidence that:

they engaged in protected activity (they made a protected disclosure under Section 806);
the employer knew that they engaged in the protected activity;
they suffered an unfavorable personnel action;
the protected activity was a contributing factor in the unfavorable action.

Does Sarbanes-Oxley protected conduct require a showing of materiality?

Sarbanes Oxley Protected Conduct Does Not Require a Showing of Materiality The great weight of authority holds that there is no independent materiality element to establish … Continued

What whistleblowing disclosures are protected under the Sarbanes-Oxley Act?

What is Sarbanes-Oxley protected conduct? Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation … Continued

Why did Congress enact the whistleblower protection provision of the Sarbanes-Oxley Act?

Purpose of SOX Whistleblower Protection Law When Congress enacted the Sarbanes-Oxley Act (SOX) in 2002, it included a whistleblower protection provision to combat a … Continued

Is an employee’s participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act?

The whistleblower protection provision of the Sarbanes-Oxley Act protects the following activity: “to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation[.]”

What is front pay?

Many anti-discrimination and anti-retaliation statutes authorize reinstatement as an element of damages. If restatement is not feasible, a court may award front pay in lieu of reinstatement. There is no precise formula to determine the amount of front pay, A front pay award is intended to provide compensation for a period of time sufficient to allow the wronged employee an opportunity to obtain similar employment. As front pay is an equitable remedy, the judge usually determines front pay.

Is retaliation that occurred outside of the statute of limitations period relevant evidence of retaliation?

Discrete conduct occurring outside the statute of limitations can be offered as circumstantial evidence of retaliation. For example, if a supervisor threatens to terminate the employment of a whistleblower if the whistleblower raises additional compliance concerns and the supervisor ultimately carries out the threat, the threat itself is relevant to prove retaliation even if it was made outside of the statute of limitations period.

Does the Sarbanes-Oxley Act protect whistleblowing about potential violations of federal securities laws?

A SOX retaliation plaintiff need not demonstrate that they disclosed an actual violation of securities law; only that they reasonably believed that their employer was defrauding shareholders or violating an SEC rule. Indeed, a reasonable but mistaken belief is protected under SOX. “To demonstrate that a plaintiff engaged in a protected activity, a plaintiff must show that [s]he had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law.”

What is perceived whistleblowing?

Courts and administrative tribunals have construed whistleblower protection laws to protect employees from adverse employment actions because they are suspected of having engaged in protected … Continued

Is threatening a countersuit against a whistleblower an act of retaliation?

Yes, some courts have held that threatening to sue a whistleblower can be retaliatory if the counterclaim (i) lacks “reasonable basis in fact or law” … Continued

Page 6