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02/12/24 | Articles and TV
Supreme Court Confirms Whistleblower-Favorable Standard in Retaliation Cases
By Randall Fox and Rohan Kulkarni
On February 8, 2024, the U.S. Supreme Court unanimously rejected efforts by employers to impose new hurdles to whistleblower retaliation claims. For whistleblower retaliation claims under the Sarbanes-Oxley Act, the Court rejected an argument by employers that tried to read into the law a requirement that did not exist in the language of the Act. See Murray v. UBS Sec., LLC, No. 22-660, 2024 WL 478566, at *1 (U.S. Feb. 8, 2024).
In the underlying litigation, UBS argued that whistleblowers need prove that the employers acted with “retaliatory intent” when they fired, demoted, punished, or otherwise took job actions against a whistleblower. The Supreme Court, however, made clear that a whistleblower who asserts a Sarbanes-Oxley retaliation claim need prove only that the employer discharged, demoted, suspended, threatened, harassed, or otherwise discriminated against the employee in the terms and conditions of employment because of the whistleblower’s protected whistleblower activity. In other words, it is enough to prove that the protected whistleblower activity was a contributing factor in the unfavorable personnel action.
In rejecting the effort to inject a “retaliatory intent” element into the cases, the Supreme Court recognized that Congress had framed the law with the lower standard of proof, for it saw that the health and well-being of the public may depend on whistleblowers feeling empowered to come forward. The courts were not empowered to override Congress’ policy choice by adopting more stringent requirements than were in the statute.
The Sarbanes-Oxley Act is just one of the laws that provides whistleblowers with rights and protections, including protections against retaliation. Potential whistleblowers should also consider their rights under the whistleblower programs at the Securities and Exchange Commission (SEC, for securities violations), Commodity Futures Trade Commission (CFTC, for commodities violations), Internal Revenue Service (IRS, for federal tax violations), and the Financial Crimes Enforcement Network and Office of Financial Assets Control (FinCEN and OFAC, for violations of bank secrecy and foreign sanctions laws), and under the federal and state False Claims Acts (to bring “qui tam” cases in the name of the government to recover monies lost to the government due to fraud).
If you are aware of violations that have victimized the government or investors that might be addressed by a whistleblower program, please contact Kirby McInerney LLP by filling out a contact form here, to discuss your rights or interests with respect to these matters without any cost to you.
In the underlying litigation, UBS argued that whistleblowers need prove that the employers acted with “retaliatory intent” when they fired, demoted, punished, or otherwise took job actions against a whistleblower. The Supreme Court, however, made clear that a whistleblower who asserts a Sarbanes-Oxley retaliation claim need prove only that the employer discharged, demoted, suspended, threatened, harassed, or otherwise discriminated against the employee in the terms and conditions of employment because of the whistleblower’s protected whistleblower activity. In other words, it is enough to prove that the protected whistleblower activity was a contributing factor in the unfavorable personnel action.
In rejecting the effort to inject a “retaliatory intent” element into the cases, the Supreme Court recognized that Congress had framed the law with the lower standard of proof, for it saw that the health and well-being of the public may depend on whistleblowers feeling empowered to come forward. The courts were not empowered to override Congress’ policy choice by adopting more stringent requirements than were in the statute.
The Sarbanes-Oxley Act is just one of the laws that provides whistleblowers with rights and protections, including protections against retaliation. Potential whistleblowers should also consider their rights under the whistleblower programs at the Securities and Exchange Commission (SEC, for securities violations), Commodity Futures Trade Commission (CFTC, for commodities violations), Internal Revenue Service (IRS, for federal tax violations), and the Financial Crimes Enforcement Network and Office of Financial Assets Control (FinCEN and OFAC, for violations of bank secrecy and foreign sanctions laws), and under the federal and state False Claims Acts (to bring “qui tam” cases in the name of the government to recover monies lost to the government due to fraud).
If you are aware of violations that have victimized the government or investors that might be addressed by a whistleblower program, please contact Kirby McInerney LLP by filling out a contact form here, to discuss your rights or interests with respect to these matters without any cost to you.
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