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In Wiest v. Lynch, No. 11-cv-4257, 2013 U.S. App. LEXIS 5345 (3d Cir. March 19, 2013), the Third Circuit gave Chevron deference to U.S. Department of Labor Administrative Review Board’s (ARB) interpretation of “protected activity” under Section 806 of SOX in Sylvester v. Parexel International LLC, No. 07-123 (ARB May 25, 2011), concluding that a whistleblower need only show that his or her communication reflects a reasonable belief that the employer has violated or will violate the law or rules of the SEC.  We now see a circuit split on multiple issues, including whether the alleged misconduct must “definitively and specifically” relate to one of the categories in Section 806, and whether the employee can engage in protected activity by complaining of potential future violations. 

The stakes increase and the landscape changes tremendously in a whistleblower case when the Secretary of Labor (Secretary) issues a preliminary reinstatement order.  The specter of reinstatement could in some cases – especially where the whistleblower is an executive and/or there is serious acrimony – eclipse the risk of monetary awards.  And the Secretary is apt to become vigilant in seeing that the order gets enforced, the whistleblower feels empowered, and the employer scratches its head wondering how such dramatic relief could be ordered in the absence of a meaningful evidentiary hearing.  Fortunately for employers, the U.S. District Court for the District of Idaho recently held that it lacked jurisdiction to enforce a preliminary order of reinstatement in Solis v. Union Pacific Railroad Co., No. 12-cv-00394 (D. Idaho Jan. 11, 2013), an action brought under the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA).  This decision could have wide reaching effects because the applicable enforcement provisions are adopted by a range of whistleblower protection statutes, such as Section 806 of the Sarbanes-Oxley Act of 2002.