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New Standards for Pleading in Retaliation Cases

The Sarbanes-Oxley Act is one of the less frequently discussed laws governing retaliatory discharge of employees. Yet, for those working in the financial or corporate sector it can be of vital importance. Various federal statutes governing issues ranging from workplace safety to on-the-job discrimination contain prohibitions against retaliation directed towards employees who report violations. The Sarbanes-Oxley Act provides this type of protection for the corporate sector, shielding employees who report potential instances of financial, securities or shareholder fraud.

Since the Act was passed in 2002, this protection has usually been narrowly construed to include only reports of conduct the employee reasonably believed to be a violation of certain enumerated offenses:

  • Federal mail, bank or wire fraud laws
  • Securities and Exchange Commission regulations
  • Federal laws involving shareholder fraud

Moreover, only “reporting up” to supervisors or managers or “reporting out” to the SEC was considered protected activity. Disclosing practices to the media or other third parties other than regulators is not covered.

Under prior standards, those suing for unlawful discharge under Sarbanes-Oxley had to show how their complaints were specifically related to one or more of the enumerated types of offenses. Recently, however, the Administrative Review Board of the Department of Labor has relaxed these standards by interpreting the Act to only require that an employee have an objectively reasonable belief that the conduct he or she is reporting is or would become one of the enumerated violations. The United States Court of Appeals for the Third Circuit has already accepted this interpretation and other circuits may follow soon. Should this approach be adopted in the Second Circuit, it could significantly increase the ability of financial sector workers to pursue cases for wrongful discharge in NYC.

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