In a pair of recently issued decisions, the Department of Labor’s Administrative Review Board (ARB) held that Sarbanes Oxley’s anti-retaliation provision does not apply extraterritorially. Hu v. PTC, Inc., ARB Case No. 2017-0068 (Sept. 18, 2019); Perez v. Citigroup, Inc., ARB Case No. 2017-0031 (Sept. 30,
ARB Affirms Dismissal of SOX Whistleblower Claim Against Non-Public Companies
The ARB recently affirmed the dismissal of a whistleblower retaliation claim under Section 806 of SOX, holding an employer is not a “contractor” covered by SOX simply because it was a party to a contract with a publicly traded company. Griffo v. Book Dog Books, LLC, Robert William Holdings, LLC
Missouri Court of Appeals Upholds $1.5 Million Whistleblower Jury Verdict
On January 22, 2018, the Missouri Court of Appeals upheld a jury verdict awarding approximately $1.5 million in damages to a radiation oncologist after finding that she had been constructively and wrongfully terminated in violation of Missouri law (specifically, “Missouri public policy”) in retaliation for reporting alleged instances of substandard
Two Illinois Federal Courts Rule That Illinois Whistleblower Act May Provide For Individual Liability
Two courts in the Northern District of Illinois recently ruled that the Illinois Whistleblower Act (IWA) (740 ILCS § 174/5) provides for individual liability. Bello v. Village of Skokie, No. 14-cv-1718 (N.D. Ill. Sept. 2, 2014 and Dec. 31, 2015); Hower v. Cook County Sheriff’s Office, No. 15-cv-6404 (N.D. Ill. Feb. 16, 2016).
ARB Broadly Interprets Adverse Action Once Again
On November 24, 2015, the ARB adopted an expansive interpretation of what constitutes an adverse action for claims asserted under the Federal Railroad Safety Act of 1982 (FRSA), holding that a reduced performance rating with no compensation-related consequences and a failure to pay medical bills in connection with a work-related accident are actionable. Fricka v. National Railroad Passenger Corp., ARB Case No. 14-047 (Nov. 24, 2015).
New Jersey District Court: Dodd-Frank Protects Internal Whistleblower
Further reflecting the divide amongst courts regarding the definition of “whistleblower” under the Dodd-Frank Act, the District Court of New Jersey recently held that an employee who internally reports an alleged securities law violation is subject to the statute’s anti-retaliation protections. Dressler v. Lime Energy, No. 3:14-cv-07060, 2015 U.S. Dist. LEXIS 106532 (D.N.J. Aug. 13, 2015).
Second Circuit Entertains Argument on Scope of Dodd-Frank Whistleblower Provision
The Second Circuit recently entertained oral argument in Berman v. Neo@Ogilvy, focusing on whether the Dodd-Frank whistleblower protection provision covers individuals who only complain internally about alleged securities law violations rather than reaching out to the SEC. We previously posted on the Southern District of New York’s December 5, 2014 ruling in this matter that internal reports are not protected under Dodd-Frank, as was held in the Asadi case out of the Fifth Circuit. We also discussed the SEC’s amicus brief in this matter here.
California District Court Holds that Internal Tipsters Are Protected Under Dodd-Frank
On May 5, 2015, in Somers v. Digital Realty Trust Inc., No. C-14-5180, the U.S. District Court for the Northern District of California held that an internal complaint of an alleged securities law violation is sufficient to invoke the Dodd-Frank Act’s anti-retaliation protection.
OSHA’s Recent Guidance on Whistleblower Retaliation Investigations
The Directorate of Whistleblower Protection Programs recently issued a guidance memorandum titled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” for the apparent purpose of clarifying the standards for its whistleblower investigations. A review of this memorandum provides employers with insight as to the standard OSHA uses to determine whether a merits finding is in order.
SEC’s Limit on Retroactivity of Dodd-Frank Whistleblower Bounty Awards Is Reasonable, Second Circuit Holds
The Second Circuit Court of Appeals recently deferred to the SEC’s determination that a tipster who provided information to the Commission before July 21, 2010, the effective date of the Dodd-Frank Act, is not eligible to receive a whistleblower bounty payment. Stryker v. SEC, Case No. 13-4404-ag (2d Cir. Mar. 11, 2015).