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Second Circuit Strays From “Definitively and Specifically” Standard But Still Dismisses SOX Claim

On August 8, 2014, the Second Circuit affirmed the dismissal of a SOX whistleblower retaliation claim brought by a former AECOM Technology Corp. (“Company”) employee, holding that he did not engage in protected activity because he lacked a reasonable belief that the alleged conduct of which he complained violated one of the enumerated federal provisions … Continue Reading

SEC Denies Whistleblower Award Claim for Harbinger-Falcone Recovery

As recently reported by Ed Benson of Law 360, on July 4th, 2014, the United States Securities and Exchange Commission (the “SEC” or “Commission”) issued a final order that denied a whistleblower award claim on the $18 million that the SEC recovered in a settlement agreement with Harbinger Capital Partners LLC (“Harbinger”) and the company’s … Continue Reading

DC Circuit Rejects Narrow View Of Attorney-Client Privilege In Internal Company Investigations

On June 27, 2014, the D.C. Circuit granted Kellogg Brown & Root’s (“KBR’s”) petition for a writ of mandamus and vacated a federal district court order requiring KBR to produce 89 documents related to an internal investigation.  Relying on Upjohn Co. v. United States, 449 U.S. 383 (1981), the D.C. Circuit ruled that the documents … Continue Reading

OSHA Orders Company to Pay SOX Whistleblower Back Wages

According to its recent press release, OSHA issued a preliminary order requiring SpongeTech Delivery Systems, Inc. of New York (Company), a cleaning product company, to pay a complainant $31,835.33 in back wages based on its determination that she was retaliated against in violation of Section 806 of SOX.  Complainant apparently reported fraudulent sales to Company … Continue Reading

SEC Denies Enforcement Action Award for Failure to Timely File Claim; Narrowly Defines “Extraordinary Circumstances” Exception

As reported by Rachel Ensign of the Wall Street Journal, the Securities and Exchange Commission (“SEC”) recently denied a whistleblower-claimant a Commission enforcement action award where the claimant failed to file timely an award claim with the SEC’s Office of the Whistleblower.… Continue Reading

OSHA Issues Substantial Award To SOX Whistleblower Claiming “Blacklisting”

According to a news release from OSHA, OSHA recently ordered DISH Network (the “Company”) to pay a former employee over $257,000 in back wages and compensatory damages, plus reasonable attorneys’ fees, and to expunge his employment record after it determined that the Company violated Section 806 of SOX.… Continue Reading

ARB: No SOX Whistleblower Liability Where Termination Of In-House Counsel Was Based On Insubordination

The ARB recently affirmed an ALJ’s decision that American Commercial Lines Inc. (the “Company”) did not violate the whistleblower protection provision in Section 806 of SOX where the Company demonstrated by clear and convincing evidence that its decision to discharge employee Angelina Zinn, who was an in-house attorney, was based on her insubordination.  Zinn v. … Continue Reading

What’s The State Of The CFTC Whistleblower Program?

The SEC’s whistleblower program has received tremendous attention, but let’s not forget about the Commodity Futures Trading Commission’s (CFTC) whistleblower program, which also was created by Dodd-Frank (here are the applicable rules).  A recent article from the Risk & Compliance Journal of the Wall Street Journal provides valuable insight into how this program is functioning with … Continue Reading

DoL (Yes, The DoL!) Pays Big Settlement In Whistleblower Case

Earlier this month, the U.S. Department of Labor (DoL) settled a whistleblower claim brought by Robert Whitmore, a former DoL recordkeeping official, for $820,000. Mr. Whitmore alleged that he complained that the DoL failed to adequately monitor and enforce its record-keeping requirements—thereby affording employers the opportunity to under-report on-the-job injuries and illnesses—and was discharged as … Continue Reading

OSHA Reinstates ERA Whistleblower And Issues Daunting Preliminary Order

On May 15, 2013, OSHA determined that Enercon Services Inc. (Company), an engineering firm that provides nuclear power facilities with engineering support services, violated the whistleblower provisions of the Energy Reorganization Act (ERA).  OSHA Regional News Release, 13-822-KAN (May 20, 2013).  As a result, it ordered reinstatement and a host of other severe penalties.  The … Continue Reading

Recent Multi-Million Dollar Whistleblower Jury Awards — A Wake-Up Call For Employers

In what might be an unsettling trend for employers, juries in Philadelphia and Anchorage have recently issued multi-million dollar jury awards in favor of whistleblowers. Specifically, on March 22, 2013, a Philadelphia Common Pleas Court jury awarded Plaintiff-whistleblower Marla Pietrowski $1.7 million for her claims under the New Jersey Conscientious Employee Protection Act, and Ms. … Continue Reading

OSHA Penalizes Another Railroad Company In Whistleblower Action

On February 28, 2013, OSHA ordered Union Pacific Railroad (UP) to reinstate the employment of and pay over $309,000 ($150,000 in punitive damages, $87,600 in compensatory damages, $71,700 in back pay with interest, plus attorney’s fees) to a locomotive conductor who alleged he was discharged for reporting a co-worker’s on-the-job injury.  OSHA Regional News Release, … Continue Reading

Senator Grassley’s Harsh Criticisms Of IRS Whistleblower Program Implementation

On January 28, 2013, in a letter to the Internal Revenue Service (IRS) and the U.S. Department of Treasury (Treasury), Senator Charles Grassley (R-IA), co-author of the 2006 updates to Section 7623 of the Internal Revenue Code (IRC), criticized the IRS Whistleblower Program (WBP) and WBP regulations that were presented in the agency’s December 14, … Continue Reading

IRS Whistleblower Program: Payouts Rise in 2012

On February 13, 2013, the IRS issued its “Fiscal Year 2012 Report to the Congress on the Use of Section 7623,” as required by The Tax Relief and Health Care Act of 2006 (Act).  The Act was established “to encourage people with knowledge of significant tax noncompliance to provide that information to the IRS.” The IRS … Continue Reading

OIG Report On SEC Whistleblower Program: Praise, Suggestions & Conclusion That Private Right Of Action Would Be Premature

On January 18, 2013, the Securities and Exchange Commission’s (SEC) Office of Inspector General (OIG) released its report titled Evaluation of the SEC’s Whistleblower Program.  The report presented a largely positive review of the SEC Office of the Whistleblower (OWB), and contained two recommendations to strengthen enforcement.  (Our recent post discussing the functioning and results … Continue Reading

Supreme Court Asked To Decide If Retaliation Claims Require New Administrative Charge

On January 8, 2013, the U.S. Supreme Court was petitioned to rule on whether employees must file a new or amended charge to pursue an employment retaliation claim arising from an initial Title VII discrimination charge.  If the Court grants certiorari, we’re likely to see the resolution of a decade-long circuit split created by the … Continue Reading

Political Affiliation & Protected Speech Retaliation – Sixth Circuit Widens Circuit Split

The Sixth Circuit recently held that Michigan state employees could base First Amendment political-affiliation and protected-speech retaliation claims on their perceived political affiliations, even absent actual affiliations with the party in question.  Dye v. Office of the Racing Comm’n, No. 11-cv-1828 (6th Cir. Dec. 18, 2012).   It’s important for government and private employers alike to … Continue Reading
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