Frank J. Albetta Post Office Box 3293 Chapel Hill, NC Attorney at Law

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1 Whistleblower Claims By Frank J. Albetta July 22, 2014 I. Introduction: What is a Whistleblower Claim? Whistleblower claims are a specific type of retaliation claim. Generically, a whistleblower is an employee who reports wrongful conduct by his or her employer to a governmental entity, or to an external agency such as a news media outlet. Whistleblower protection laws do not cover reports to media, however, and some whistleblower statutes require external action or some sort of internal reporting for protection to be extended. The alleged wrongdoing may include violations of public laws or regulations, gross mismanagement or waste of funds, conduct that is dangerous to public health or safety, violations of company policy, or ethical lapses, but whistleblower protection laws generally cover only the first three categories, however. The whistleblower claim is that, in retaliation for his or her actual or imminent disclosure of wrongdoing, the whistleblower s employer terminated, demoted, harassed, intimidated, or otherwise imposed some adverse action or condition upon the whistleblower. Due to media portrayals of whistleblowers in news and arts media CBS s 60 Minutes television program is a good example whistleblowers and whistleblower claims have come to enjoy significant public approval. As a result, employers facing such claims can incur substantial negative publicity and harm to their reputations, not to mention a potential judgment and the cost 1

2 of a defense. As public attitudes favoring whistleblowers can also affect jury perceptions, avoiding whistleblower claims is worth some significant effort by employers. After reviewing some federal and state whistleblower statutes, this article will examine the Sarbanes Oxley Act of 2002 in greater depth, as it has created vastly expanded possibilities for civil and criminal liability for employers, including individual liability. The article will conclude with a review of the means by which employers may manage and address whistleblowers and retaliation claims. II. Examples of Whistleblower Statutes There are over a dozen federal statutes alone that include whistleblower protections. These statutes address subjects as widely varying as clean air and clean water, energy, air and rail transportation, waste disposal, and toxic substances. Each includes whistleblower protections applicable to employees of the companies in each industry subject to the respective statutes, and offer remedies such as reinstatement, back pay and front pay, compensatory damages, costs and attorneys fees, and, in some cases, punitive damages. Some examples of generally applicable federal and state laws creating whistleblower protections follow. The Sarbanes Oxley Act of 2002 (Pub.L , 116 Stat. 745, enacted July 30, 2002), popularly known as SOX, was adopted by Congress in response to fraudulent and negligent conduct by the boards and management of publicly traded companies and their public accounting firms. SOX provides civil and criminal penalties for any person who, with the intent to retaliate, takes any harmful action against a person who has provided truthful information regarding violations. 18 U.S.C. 1513(e). 2

3 The Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L , H.R. 4173), created additional financial regulation of Wall Street and the banking industry, and amended SOX; includes whistleblower protections and a whistleblower bounty program that provides a reward to those who provide information that lead to successful prosecutions by the Securities and Exchange Commission. The Occupational Safety and Health Act of 1970 (P.L , 84 Stat. 1590), provides remedies against any person who discharges or discriminates against any employee who engages in protected activity in reporting unsafe working environments. 29 U.S.C. 660(c). The Affordable Care Act, (P.L , 124 Stat. 119), popularly known as Obamacare, includes protections for whistleblowers, under rules adopted by the Occupational Safety and Health Administration (OSHA), who report employer wrongdoing under the Act. Title VII of the Civil Rights Act of 1964, most other equal employment opportunity laws, and many other employment-related federal statutes, include anti-retaliation provisions that offer a form of whistleblower protection for employees who report or oppose instances of conduct prohibited by the particular statute. The North Carolina Whistleblower Protection Act, Article 14 of GS Chapter 126, formally known as Protection for Reporting Improper Government Activities, provides whistleblower protections for those who report violations of state or federal law, rules, or regulations, fraud, misappropriation of state resources, substantial and specific danger to the public health and safety, or gross mismanagement, a gross waste of monies, or gross abuse of authority, if the whistleblower is a permanent state employee. N.C. Gen.Stats There is 3

4 also a federal Whistleblower Protection Act, P.L , 1989), that protects federal employees who report agency misconduct. The Public-Policy Exception to At-Will Employment: a type of whistleblower protection is created under state law by the public policy exception to at-will employment, whereby even an at-will employee of a private employer may sue for wrongful discharge by alleging that the discharge was based on the employee s refusal to violate the law at the employer s request, on the employee s engaging in conduct public policy favors, such as reporting the employer s misuse of public funds, or on the employee s refusal to engage in conduct promoted by the employer that public policy condemns. See Combs v. City Electric Supply Co., No. COA (N.C.Ct.App. 2011). III. The Sarbanes Oxley Act of 2002 The most widely reported aspects of SOX were the new accounting requirements, under section 302, which require CEOs and CFOs to personally certify the accuracy of the company s annual and quarterly financial reports, subject to criminal penalties. SOX also created the Public Company Accounting Oversight Board, and expanded publicly traded companies corporate governance standards. Other SOX provisions, however, have major impacts on the employeremployee relationship, and not just for publicly traded companies. One such provision creates criminal penalties for retaliation and other conduct by any and all companies in any proceedings by any federal agency. (Some of the features of SOX discussed below were added to SOX by Dodd-Frank.) 4

5 A. Internal Complaint Procedures SOX requires corporate boards to establish procedures for employees to report concerns regarding improper financial, accounting, or auditing practices. The procedures must provide for the anonymous and confidential submission of such reports. Informants are protected against retaliation by civil and criminal penalties. SOX also established a federal cause of action entitled Whistleblower Protection for Employees of Publicly Traded Companies, establishing broad protections with little burden on claimants. B. Protection of Employees Who Participate in Federal Enforcement Proceedings SOX prohibits retaliation against employees who have initiated, given testimony in, participated in, or otherwise assisted in any proceeding involving the enforcement of federal securities or anti-fraud laws. C. Whistleblower Protection SOX prohibits discrimination against an employee of a publicly traded company in the terms and conditions of employment because such employee has reported conduct the employee reasonably believes to be a violation of securities law, SEC regulations, or any federal shareholder-anti-fraud provision. 18 U.S.C. 1514A(a)(1). This anti-retaliation subsection protects reports to a federal regulatory or law-enforcement agency, any member or Committee of Congress, or any person with supervisory authority over the employee or with the power to investigate, discover, or terminate misconduct. Under this subsection, there is no requirement that disclosures be made in connection with federal law enforcement proceedings. Earlier this year, the United States Supreme Court held that employees of private contractors and sub- 5

6 contractors of publicly traded companies were within the protections afforded by the whistleblower non-retaliation provision. Lawson v. FMR LLC, et al., U.S., No (Mar. 4, 2013). 1. Complaint Procedure SOX requires a specific procedure for employees alleging violation of the anti-retaliation provision. An employee must first file a complaint with the Department of Labor s Occupational Safety and Health Administration (OSHA) within 180 days of the date on which the violation occurred. OSHA must notify the employer of the complaint and seek to conciliate the complaint with the employer. If conciliation fails, OSHA must complete its investigation of the complaint and issue its written findings within 60 days of receipt of the complaint. If it finds no violation, OSHA will dismiss the complaint, If OSHA finds a violation, it may issue an order providing relief for the complaining employee. OSHA S decision is subject to appeal by either party within 30 days. Following discovery, the matter is heard by an Administrative Law Judge, who issues a recommended decision and order. Upon issuance of the recommended decision, either party has 10 days to file a petition for review with the Administrative Review Board. ARB review is discretionary with the ARB, and if the review petition is not granted within 30 days, the ALJ s decision becomes the final decision of the Secretary of Labor. Following that or following the decision of the ALJ, either party has 60 days to file a review petition with the circuit of the U.S. Court of Appeal in which the alleged violation occurred or in which the complaining party resided at the time of the alleged violation. 6

7 Any settlement reached by the parties must be supervised by DOL and may not be confidential. See 29 CFR (d)(2). Moreover, DOL must send OSHA s decision to the Securities and Exchange Commission. DOL also routinely sends copies of all SOX pleadings to the SEC. The SEC may, of course, initiate its own investigation of the employee s original complaint. If the DOL has not completed its administrative proceedings and issued a decision within 180 days of the filing of the complaint, and "there is no showing that such delay is due to the bad faith of the claimant," the employee may then file a de novo action in federal district court. SOX provides that the federal district courts shall have jurisdiction of such actions regardless of the amount in controversy, and plaintiffs are entitled to trial by jury. 2. Prima Facie Case and Burden Shifting To establish a prima facie case, an employee must plead and prove that 1. The employee engaged in protected activity or conduct; 2. The employer knew or suspected, actually or constructively, that the employee had engaged in such conduct; 3. The employee suffered an adverse employment action; and 4. The circumstances were such as to raise an inference that the protected activity was a contributing factor for the imposition of the adverse employment action. 29 C.F.R (b)(1)(i)-(iv), see Van Asdale v. International Game Tech. 577 F.3d 989 (9th Cir. 2009). The plaintiff obviously faces a very low hurdle with respect to the obligation of proving that the protected activity was a contributing factor to the unfavorable employment 7

8 action. Other federal whistleblower statutes apply the more demanding motivating factor standard. As a practical matter, the employee will meet the contributing factor standard on the basis of the employer s knowledge of the protected activity and the occurrence of the adverse action reasonably soon after it occurred. If the plaintiff establishes a prima facie case, the employer s burden of proof is substantial. Section 1514A(b)(2) specifies that section 1514A claims are governed by the procedures applicable to whistleblower claims brought under 49 U.S.C (b). That provision states that if the plaintiff meets the burden of establishing a prima facie case of retaliatory discrimination, the defendant employer must prove by clear and convincing evidence that the adverse action had a sufficiently valid independent basis or that it would have taken the adverse action regardless of the protected activity. 49 U.S.C (b); see Van Asdale, 577 F.3d 989. Unlike the preponderance of the evidence standard, which requires the proponent to create only a likelihood, however, slight, of the validity of its position, clear and convincing evidence is that which makes it highly probable that the proponent s position should prevail. That is a substantially higher standard than imposed by other employment laws. Even if the employer meets that high standard, the employee may yet prevail by showing, by a preponderance of the evidence, that the employer s proffered reason is pretextual. 3. Remedies Employees who prevail on the merits of their claims are entitled to all relief necessary to make the employee whole, including reinstatement, double back pay with interest, and compensatory damages, including litigation costs, experts and attorneys fees. Punitive damages 8

9 are not available, but individual company officials found to be culpable can be individually liable. The statute expressly provides that the rights and remedies afforded protected employees under the subsection may not be waived or altered by any agreement, policy, or requirement of employment, including any pre-dispute arbitration agreement. 18 U.S.C. 1514A(e). The Dodd-Frank Act added a provision for whistleblower bounties under which the SEC must award a whistleblower between 10 percent and 30 percent of monetary sanctions imposed on culpable corporations in excess of $1 million when the successful SEC prosecution was based on the information the whistleblower provided to the SEC. There have been multi-million dollar awards under the bounty program, creating a tremendous incentive for putative whistleblowers to make reports. Moreover, as an employee must have been the first to have provided the information upon which the SEC action was based, employees have a strong incentive to bypass internal reporting procedures and go directly to the SEC, which they are entitled to do. In some cases, whistleblowers have been allowed to collect bounties even when their initial reports were internal. D. Criminal Penalties for Obstruction All Companies, Any Agency In addition to the new requirements for publicly traded companies, SOX includes very broad provisions applicable to all companies with respect to any and all proceedings and investigations by any federal agency. Those provide for criminal sanctions for concealment or alteration or records, tampering with documents, retaliation, and impeding investigations in connection with any matter within the jurisdiction of any department or agency of the United 9

10 States. Such sanctions may be imposed whether the misconduct was authorized by the company or was the responsibility of an individual acting on his or her own discretion. Section 1102 provides: (c) Whoever corruptly-- (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.'. See 18 U.S.C The official proceedings to which this provision may apply could clearly include those of the EEOC, DOL s Wage and Hour Division, OSHA, and any other federal department or agency. Criminal liability for tampering with evidence or obstruction can be incurred even in advance of any such proceeding so long as a proceeding is contemplated at the time of the culpable conduct. Id Section 1107 provides (e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both. See 18 U.S.C Note that the report of wrongdoing may be made to any law enforcement officer and that the information need only be truthful no actual violation need have occurred. These criminal provisions, applicable to all companies in regard to all federal agency proceedings, create harsh consequences for employers that are unable to document that their 10

11 treatment of evidence and witnesses had valid bases independent of any investigation or other official proceeding. IV. Addressing Whistleblower Complaints In view of the high stakes posed by whistleblower claims, employers should adopt an approach that creates a demonstrable culture of compliance within the company. The employer must communicate at all levels of the organization that it expects compliance with all applicable law and with company policies and ethical requirements, and that it will act to correct lapses. Employers must be prepared both to address whistleblowing and manage whistleblowers as employees. Finally, employers must be willing to act on claims, and on actions necessary to manage whistleblowers. A. Communication Employers identify those things that are important to them through the adoption of policies and provision of training to their managers and employees. An employer that wants to be able to show its active promotion of compliance must, at a minimum, adopt appropriate policies and provide employee training on the policies and their subject matter. An employer that has adopted and enforced a written policy encouraging the reporting of wrongdoing to the employer, requiring the investigation of such reports, and providing protections against retaliation for such reporting will have taken essential first steps toward deflecting the claims of an employee who suffered adverse consequences for reasons unrelated to the whistleblowing. Periodic reinforcement of the compliance message in company publications is advisable to show continuity of attention to the issue. 11

12 From employees perspective, if employees are persuaded that the employer offers meaningful and safe means of raising issues of compliance and wrongdoing, they are more likely to raise such issues internally than to take such complaints to government agencies. This section is entitled addressing whistleblower complaints, not preventing such complaints, because it is in employers interest to encourage internal reporting. The availability of internal procedures for raising issues is also an essential weapon for defending retaliation claims. Adopt a policy: By adopting and enforcing a policy requiring reporting of company wrongdoing, an employer will have established a clear position regarding its insistence on compliance. SOX requires the adoption of a policy for receiving complaints regarding accounting or auditing matters, but it is advisable to develop a broader policy encouraging the reporting of wrongdoing of any type by the company or its officers or employees. At a minimum, the policy should state the employer s commitment to operating according to all applicable laws and company policies, describe the means and procedures through which employees should report wrongdoing, mandate the procedures for investigating and acting upon such reports, and provide assurances of confidentiality and non-retaliation for the reporting employee. A sample reporting policy follows. Reporting Violations of Law and Policy It is the express policy of the Employer: To observe and abide by all federal and state law to which it is subject, and to uphold Employer policies; That all employees shall observe and abide by all federal and state law, and Employer policies in the discharge of their duties; and That apparent violations of law or policy in the Employer's operations shall be investigated and corrected when found to exist. 12

13 In keeping with the foregoing, all employees are strongly encouraged to report apparent violations of law or policy of which they have knowledge for investigation when such violations are committed by the Employer s officers or employees in the discharge of their duties on behalf of the Employer. A. Reporting Apparent Violations of Law or Policy 1. Any employee who obtains knowledge of facts that lead such employee to a reasonable belief that any other employee or officer of the Employer is violating any state or federal law or any Employer policy in the discharge of his or her duties, is encouraged to report such facts to the [OFFICER], within five working days of learning such facts [alternate: as soon as possible]. 2. In the event that the employee reasonably believes the [OFFICER] is culpable of the apparent violation, or that the [OFFICER] is aware of and complicit in the apparent violation, the employee's report shall be submitted to the [ALTERNATE OFFICER OR THE BOARD OF DIRECTORS]. In any case, notice of reports made under this section shall be provided to the Board of Directors. 3. Reports submitted pursuant to this section may be made anonymously, and will, in any case, be kept confidential subject to the requirements of an investigation. B. Investigation of Reports 1. Reports submitted by employees pursuant to section A shall be promptly investigated by the [OFFICER], or his or her designee, or, in cases in which such reports are submitted to the [ALTERNATE OFFICER OR BOARD], by the [ALTERNATE OFFICER OR BOARD] or designee. 2. In any investigation conducted under this policy, the investigating official shall engage the assistance of Employer s legal counsel or other outside investigators or experts to assist in or conduct such investigation. 3. A separate and confidential investigatory file shall be maintained for each investigation of reports submitted pursuant to section A of this policy, and interim memoranda, investigatory notes, documents pertinent to the investigation, and the final report and disposition of the charges shall be kept in such file. C. Disposition of Report 1. Within working days of receiving a written report submitted under section A of this policy, the [OFFICER] or [ALTERNATE OFFICER OR BOARD] shall issue a written disposition stating the result of the investigation of the reported violation to the 13

14 CEO, the CFO, and the Board. The written disposition shall be kept in the investigatory file together with the materials previously filed. 2. A copy of a written disposition shall be provided to the employee who submitted the initiating report, if known, and a copy of such written disposition shall be placed in the permanent investigatory file concerning such report. D. Non-retaliation 1. No employee who has submitted a report of an apparent violation pursuant to section A of this policy, no person associated with such employee, and no employee who has participated or given evidence in any investigation under this policy shall be subjected to retaliation of any kind by the Employer, or by an officer or employee of the Employer. 2. Any employee who believes he or she is being subjected to retaliation in violation of the terms of this policy should report such retaliation to the [OFFICER] or [ALTERNATE OFFICER OR BOARD]. 3. Any employee who subjects another employee to retaliatory conduct as described in subsection 1 of this section shall be subject to discipline, up to and including termination. A policy such as the foregoing could also incorporate an appeal or grievance procedure for review of initial dispositions. In addition to compliance and reporting policies, employers may also consider adoption and dissemination of a company code of ethics. Note that the sample policy provides, consistent with SOX and Dodd-Frank, that internal reporting is voluntary. The policy also provides for alternate officials to whom employees may make reports, including members of the board of directors. That is essential because of the likelihood that misconduct of which any employee is aware may involve managers and supervisor in such employee s line of supervision. Note also the provision that reports may be anonymous, as required by SOX. Presumably, acceptance of anonymous reports promotes greater disclosure, but anonymous reports are much 14

15 harder to effectively investigate because there is no identified source from whom the employer can obtain more detailed facts, the identities of potential witnesses, and other critical information. Employers investigations of anonymous whistleblower complaints may thus be inconclusive and evade resolution. Employers should nonetheless consider whether there are any measures they may take even on the basis of inconclusive investigations. Train Managers: The second critical element for addressing the threat of whistleblower complaints is to ensure that the management team is trained in the purposes and use of the employer s relevant policies. Supervisors should be trained to be receptive to accepting formal and informal employee reports, and to regularly passing them on to higher authorities for potential action. Training should emphasize the need to treat whistleblower claims seriously, to investigate and document them thoroughly, and to maintain respectful and equitable treatment of the whistleblower. The last point is particularly important to avoiding conditions that could lead to a claim of retaliation. An employee who has accepted the employer s invitation to report wrongdoing is consciously assuming some risk, the non-retaliation provisions of the employer s policy notwithstanding. Managers must understand that every effort should be made to avoid allowing such employees to become marginalized, and to ensure that they continue to be treated as members of the team. That can be difficult if the reporting employee s direct supervisor is implicated by the employee s report, and, in such cases, alternate supervisory arrangements may be advisable, at least on an interim basis. 15

16 Publicize the Policy to the Workforce: All employees should regularly be made aware of the employer s commitment to compliance, of the employer s expectation that company wrongdoing will be reported, and of the internal procedures the employer has made available for making such reports, emphasizing the employer s commitment to protecting employees from retaliation. This may be accomplished by formal, in-service training, and reinforced by periodic written communications, such as in company publications. Employees should be made aware that they are free to discuss concerns with responsible officials and to obtain informal clarification of company policy. Of course, it is essential to persuading employees of the employer s commitment that its compliance and reporting policies be assiduously and uniformly enforced in all cases. B. Preparation Responses to whistleblowing and to whistleblower complaints cannot be ad hoc. Employers should assign responsibilities and adopt internal procedures for policy enforcement. Procedures and responsibilities should be directed toward active identification of instances of potential non-compliance, rather than passive acceptance of reports by employees. Assign Responsibilities: Employers should designate executives from upper management for compliance responsibilities, and identify them and their responsibilities to company employees. Compliance and addressing whistleblowing must be more than an HR function. Responsibilities should be clearly defined, and the primacy of compliance and investigation of reports emphasized. In addition to the executives responsible for overseeing the actual operation and enforcement of compliance and reporting policies, the employer may 16

17 consider designating a high-level official as an ombudsman to receive and address concerns about the actual operation of the compliance and reporting system. Adopt Internal Procedures: The methods and means by which compliance policies will be enforced, and by which instances of potential noncompliance will be addressed, must be mapped out in advance. Particularly in regard to handling employee whistleblower reports, procedures should provide a clear internal path for investigation and resolution by trained personnel who are free of any hint of personal interest in the outcome of the investigation. The procedures should include early consideration of whether the designated investigator will be a company official or in-house counsel, an outside non-lawyer investigator, or outside legal counsel. The procedures should also identify the type and extent of documentation to be created at each step in the investigation, and ensure confidentiality and preservation of evidence. As provided by the sample policy, notice if reports and of the resolutions of reports should be provided to the Board of Directors to ensure oversight and approval at the highest level of the company. As with the published compliance and reporting policies, the adoption and enforcement of such internal procedures will themselves help to demonstrate the seriousness of the employer s commitment to compliance, and to correcting instances of non-compliance, in the event of a whistleblower complaint. C. Action Policies and procedures are only as good as the rigorousness and consistency with which they are enforced and followed. Executive officials designated to oversee compliance and investigations should actively monitor action to ensure the prompt and thorough handling 17

18 of reports, and detailed documentation of investigations and findings. Investigators should have sufficient time and resources to do a thorough job. Outside experts should be retained and involved at the earliest stages where particular expertise will be necessary to the credibility of an investigation. Depending on the nature and scope of the charges, in-house legal counsel may be involved to oversee or conduct the investigation, In other cases, engagement of outside legal counsel may be preferable. Involvement of outside legal counsel or a non-lawyer third-party investigator can be particularly important in instances in which the charge has widely implicated the management team in potential wrongdoing, such that a credible, independent inside investigator will be hard to find. Of course, in deciding upon outside legal counsel or a non-lawyer outside investigator, consideration must be given to issues of privilege. In addition, if the employer decides to engage legal counsel for the investigation, it should consider whether to use an independent counsel selected specifically for the investigation, rather than its regular outside counsel, since the investigating attorney may be called as a witness in subsequent legal proceedings on the issue of the adequacy of the investigation, and would therefore be unavailable to represent the employer in such proceedings. D. Defense of Whistleblower Retaliation Claims Because whistleblower claims are a species of retaliation claims, defense of whistleblower claims follows principles applicable to threatened or actual retaliation claims. In practice, the first line of defense is careful management of the whistleblower to avoid such claims. Avoiding action that could support a claim of retaliation is important regardless of 18

19 the validity of the underlying claim. An employee with a weak or even an invalid underlying claim can acquire a powerful claim of whistleblower retaliation if the employer acts precipitately. In fact, in those instances in which an employee who is anticipating an adverse employment action preemptively alleges a bogus claim hoping to deflect the anticipated action, managers can sometimes overreact precisely because of the plainly pretextual nature of the underlying claim. The better course is to gather and preserve evidence that the employer lacked actual or constructive knowledge of the whistleblowing activity at the time it took action against the employee, that the putative whistleblower knew of the forthcoming adverse action and raised the charge to deflect such action, that the adverse action was in process prior to the whistleblowing, or that the whistleblowing activities were conducted by the employee in an unduly disruptive manner. Employers should expect that non-retaliation protections will extend, not just to the complaining party and to witnesses to the alleged underlying whistleblowing issues, but also to persons associated with the complaining party. Cf. Thompson v. North American Stainless, 131 S.Ct. 863 (2011) (under Title VII, fiancée of an employee who had complained of discrimination had a claim for retaliation when the fiancée, who worked for the same employer, was subjected to allegedly unjustified adverse treatment by the employer). Witnesses and other participating employees should be provided assurances of non-retaliation and be advised to notify management if they believe they are being subjected to retaliation. The most difficult problem in avoiding whistleblower retaliation claims arises when the employer is faced with the need to address instances of subsequent misconduct or poor 19

20 performance on the part of a whistleblower. Employer action in such instances can result in whistleblower claims, but foregoing action in regard to significant misconduct or performance issues can also have adverse consequences for the employer. Although there is no need to pursue trifles, an employer s failure to address significant misconduct or poor performance by a putative whistleblower can suggest to other employees that they too may obtain immunity by making whistleblower reports, regardless of validity or merit. Add that whistleblower claims have special appeal to federal agencies, as well as to juries, and the employer s dilemma is complete. As employers that may be facing whistleblower claims under SOX must consider the demonstrable validity of their actions under the clear and convincing evidence standard, the best course in such instances is to respond to substandard performance or misconduct, but to develop a more deliberate and graduated response, facilitating better documentation, than might have been adopted for an employee with no complaint history. The employer may thus start with a somewhat more lenient response than might otherwise have been given, and increase the response level more slowly if the problems persist. For example, once misconduct or performance issues have become significant, an initial supervisory conference can be held. If the problems continue or recur, a documented oral warning can be issued, followed by a written warning, followed by a reprimand, etc., leading up to suspension or discharge if the problems remain significant and continue. All these must be carefully paced according to the gravity and frequency of reoccurrences, in consultation with legal counsel. 20

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