Whistleblower Law

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On February 8, 2024, the U.S. Supreme Court issued Murray v. UBS Securities LLC, No. 22-660, which addressed the proper framework for establishing a whistleblower claim under the Sarbanes-Oxley Act of 2002 (SOX). Under SOX, an employee who works for a covered company is protected from retaliation if they disclose information that the employee reasonably believes shows a violation of federal securities law, SEC rules, or any federal law related to fraud against shareholders. In Murray, the Court held that an employee is not required to prove that their employer acted with animus when it engaged in an adverse action against the employee.

In Murray, a research strategist at a securities firm voiced concerns to his supervisor about leaders of the firm’s trading desk purportedly engaging in unethical and illegal efforts to skew his independent reporting on commercial mortgage-backed securities. Despite receiving a strong performance review, the employee was subsequently terminated, which the employer alleged was a result of reduction in force. The employee then filed a SOX complaint with the Department of Labor (DOL) and, after the 180-day waiting period passed without a final decision from the DOL, subsequently filed suit in federal district court.Continue Reading Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims

Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.

OSHA ETS 

On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.

Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”

Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Continue Reading Employers subject to OSHA ETS must be mindful of OSH Act whistleblower protections

Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by section 740.

That will no longer be the case, however, starting next year. Late last month, New York Governor Kathy Hochul signed a bill that will amend and effectively overhaul section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.

Overview of key updates to section 740

  • Independent contractors can bring claims too: As a starting point, under the amended law, not only will current and former employees be able to assert legal claims against the employer, but so too will independent contractors.
  • Broad expansion of protected activity: Perhaps the most noteworthy aspect of the amendment is how it expands the types of employee activities that are protected under section 740 of the Labor Law.

Previously, section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.

The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against, workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter. To say that this is a dramatic expansion of Section 740 would be an understatement.Continue Reading New York enacts sweeping expansion of state’s whistleblower law

In the midst of the COVID-19 pandemic that is dominating the news, Virginia Governor Ralph Northam signed into law a slew of bills passed by the General Assembly that transform Virginia’s employment laws. Effective July 1, 2020, Virginia’s long-standing status as a business-friendly state with few labor and employment laws will end. These new state employment laws are far more protective of workers than current federal law. More important, these state law options likely will drive all employment-related litigation into state court where obtaining summary judgment is nearly impossible.

This is the first in a series of alerts that will discuss Virginia’s groundbreaking new laws governing workplace discrimination and retaliation, worker misclassification, wages, restrictive covenants, background checks and whistleblower claims.Continue Reading Virginia adopts a wave of new employment laws. Part 1 – Expansive discrimination and retaliation protections

On November 13, 2017, Mayor Kenney signed an Executive Order providing additional protections for whistleblowers, as well as specific requirements for city agencies, contractor, and subcontractors in addressing complaints, aimed at encouraging discovery, investigation and remediation of waste and corruption in city affairs.

The Executive Order protects city employees, as well as employees of city contractors and subcontractors, from retaliation or the threat of retaliation by city employees, contractors and subcontractors, by providing a direct path of administrative investigation and remedy for potential whistleblowers under the jurisdiction of the city’s inspector general.

The Executive Order defines “employee” to include both paid and unpaid persons performing work for any city agency, department, commission or contractor, extending the protections to volunteer workers in addition to compensated personnel.
Continue Reading New Requirements For City Contractors and Subs Under Philadelphia’s Whistleblower Law