In a series of decisions in 2011, the U.S. Department of Labor's Administrative Review Board (ARB) expanded the scope of whistleblower protection under the laws it enforces — the Sarbanes-Oxley Act, in particular. The impact of this "sea change" will be felt for years in industries that previously had few, if any, serious safeguards for employees who reported wrongdoing.
This article by TELG managing principal R. Scott Oswald was published by Sarbanes-Oxley Compliance Journal on April 25, 2012. The full article is available at Sarbanes-Oxley Compliance Journal.
More Protection for Whistleblowers
2011 marked a sea change for whistleblowers at the Department of Labor’s Administrative Review Board (ARB). The ARB changed the standard of proving protected activity, embraced the concept of corporate knowledge, established the most generous standard for an adverse action in employment law, and established the fact that most Sarbanes-Oxley cases should proceed to an evidentiary hearing.
In Sylvester, the ARB loosened the test for analyzing protected activity, specifically rejecting the test set forth in Platone v. FLYi, Inc. In Platone, the Board held that in order to constitute protected conduct, a complainant's protected communications "must relate 'definitively and specifically' to the subject matter of the particular statute under which protection is afforded." The Board noted that the use of the words "definitively and specifically" in whistleblower cases came from cases discussing the Energy Reorganization Act.