R. Scott Oswald, managing principal of The Employment Law Group® law firm was recently interviewed by Law360 on a recent Department of Labor Administrative Review Board (ARB) decision establishing a lighter burden of proof for whistleblowers under the Sarbanes-Oxley Act (SOX).
The decision, Zinn v. American Commercial Lines Inc., ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012), involved an in-house attorney, Angela Zinn, who blew the whistle on allegedly unsafe maritime transport practices while employed by the shipping company American Commercial Lines Inc. The ARB’s decision held that whistleblowers need not establish that their employer’s allegedly legitimate reason for taking action against them was pretextual.
According to Oswald, who represents employees and whistleblowers, “management-side lawyers have fought to graft this tougher burden-shifting standard onto SOX cases, but the decision demonstrates that the DOL is not having it.”
In the decision the ARB “rejected emphatically the notion that an employee has a burden to demonstrate that the employer’s proffered reason is pretextual,” Oswald noted.
Regarding the effect of the ARB’s decision, Oswald stated: “I think this makes it clear that there will be fewer and fewer of these kinds of cases that can and should be adjudicated before an evidentiary hearing.”
According to the rationale underlying the ARB’s recent decision, DOL Administrative Law Judges should now let cases proceed “unless the employer meets its burden to show through clear and convincing evidence that the same adverse action would have been taken regardless of the alleged protected activity at issue, and that,” according to Oswald, “[was] what Congress intended.”
The article, entitled “DOL Ruling Makes SOX Whistleblower Cases Harder To Beat”, appeared in the May 1, 2012 edition of the web-based legal news service, Law360.
The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.