On December 17, 2020, the Administrative Review Board (“ARB”) of the U.S. Department of Labor affirmed the dismissal of a former employee’s whistleblower retaliation claim under Section 806 of SOX.  The ARB concluded that the Complainant did not engage in protected activity, noting that his complaints regarding a lack of

On June 29, 2020, the Administrative Review Board (“ARB”) upheld the dismissal of a whistleblower retaliation complaint under Section 806 of the Sarbanes-Oxley Act (“SOX”) for failure to file within the 180-day statutory deadline.  Xanthopoulos v. Marsh & McLennan Companies, Inc., ARB Case No. 2019-0045 (June 29, 2020).

Background

DOLOn February 18, 2016, the ARB dismissed a former employee’s whistleblower retaliation claim under Section 806 of SOX, concluding that he failed to show that his protected activity contributed to the decision to terminate his employment, noting.  The ARB noted that Complainant threatened a co-worker and failed to attend a required counseling program before his employment was terminated.  Folger v. SimplexGrinnell, LLC, ARB Case No. 15-021 (Feb. 18, 2016).

DOLOn November 6, 2015, the DOL’s Administrative Review Board affirmed the dismissal of Consumer Financial Protection Act (“CFPA”) whistleblower claims of a terminated mortgage broker, concluding that the complainant did not engage in protected activity. Childs v Sente Mortgage, ARB Case No. 14-043. This is one of a growing number of claims being filed under the CFPA.

DOLThe ARB recently addressed the standard for proving that protected activity was a “contributing factor” in adverse employment actions.  It concluded that evidence showing that an employer would have made the same adverse action decision in the absence of protected activity does not bear on whether the protected activity “contributed” to the adverse action.  Powers v. Union Pacific Railroad Co., ARB Case No. 13-034 (Mar. 20, 2015) (3-2 decision).

The ARB upheld a damages award in favor of a whistleblower after his former employer purportedly “blacklisted” him by providing an apparently negative employment reference to a prospective employer.  Timmons v. CRST Dedicated Services, Inc., ARB Case No. 14-051 (Sept. 29, 2014).  This underscores the impact whistleblower laws have on employers’ post-termination conduct.