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
ARB Denies Equitable Tolling of 180-Day Statute of Limitations Under SOX
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
ARB: “Hinting” at Filing a Whistleblower Complaint is Not Protected Activity
On October 31, 2019, the ARB held that an employee who merely “hints” that he or she intends to file a whistleblower complaint has not engaged in protected activity sufficient to invoke the whistleblower protection provision in SOX. Hoptman v. Health Net of California, ARB Case No. 2017-0052, (Oct.
ARB: SOX Whistleblower Provision Does Not Apply Extraterritorially
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
U.S. Department of Labor Appoints Three New Members to the ARB
On January 8, 2019, the DOL announced Secretary Alexander Acosta’s appointment of three new members to the Administrative Review Board (ARB), filling vacancies that had been open for months, and marking the first appointments to the ARB of the Trump Administration.
The ARB issues final agency decisions on behalf of
ARB Rejects SOX Claim of Employee Who Threatened Co-Worker
On 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).
ARB Rejects CFPA Whistleblower Claim On Protected Activity Grounds
On 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.
ARB Issues Impactful Decision On Whistleblower Retaliation Causation Standard
The 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).
ARB Affirms Blacklisting Award To Whistleblower
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.