Tom Devine is the Legal Director of the Government Accountability Project, the nation's leading whistleblower protection group, and describes the procedure for filing and processing claims under SOX as follows:
(1) Claims must be filed with the Department of Labor (DOL) within 90 day of the alleged retaliatory event.
(2) The DOL conducts an investigation, attempts to mediate a settlement, and, if necessary, order temporary relief and issue an initial decision.
(3) Either party may appeal the final results of a DOL investigation to an Administrative Law Judge. Relief from the initial ruling remains in effect.
(4) Either side may appeal to the Department of Labor's Administrative Review Board for a final agency decision.
(5) Either party may appeal to a US circuit court of appeals for review of the final Department of Labor ruling.
Although by statute the Department of Labor normally must complete this process in 120 days, Devine says, the actual range has extended to 14 years, with delays of two to three years common.
However, if an investigation is not completed in 180 days, the employee has the right to seek injunctive relief and have a jury trial in a District Court. "This opportunity long has been the promised land for whistleblowers to have a fair system protecting their legal rights," Devine notes.
Since the SOX legislation was enacted in 2002, about 750 cases have been filed with the DOL, by persons saying they were retaliated against for revealing wrongdoings within a company. "The number of cases has risen, with about 150 in the law's first year and nearly twice that in its third," according to the article, "Whistle-Stop Campaigns," by Kathleen Day, in the April 23, 2006 Washington Post.
Day reports that the majority of cases have been dismissed and that fewer than 100 cases have been settled.
"And only five whistle-blowers have won," she wrote, "though that number dwindled to four last summer when the agency's administrative review board overturned a case on appeal."
In addition, three of those four cases have been appealed to the board, "whose handful of judges so far have not decided an appeal in favor of a whistle-blower," according to Day.
The Washington Law Office of Jason M Zuckerman, PLLC, primarily represents clients in whistleblower cases, including retaliation claims under the Sarbanes-Oxley Act and qui tam actions under the False Claims Act. The firm's principal, Jason Zuckerman, has lectured and written extensively about whistleblower protection laws.
Whistleblower claims generally fall into two categories. One is retaliation claims, which Zuckerman explains, are essentially discrimination claims alleging that an adverse employment action was taken in retaliation for the employee's protected conduct (exposing wrongdoing), and the other are qui tam actions under the False Claims Act, civil fraud claims brought on behalf of the government against companies that have defrauded the government.
In a qui tam action, "A qui tam relator brings forward to a federal prosecutor information demonstrating that a government contractor is engaged in fraud, typically charging the government for a service that was not performed or a product that was not provided," Zuckerman explains.
Nowadays, he says, the consequences of retaliating against a whistleblower can result in more than a civil lawsuit. "In the post-Sarbanes Oxley regulatory climate," Zuckerman warns, "a whistleblower retaliation lawsuit can also result in an investigation by a regulatory agency such as the SEC, and in bad publicity."
(1) Claims must be filed with the Department of Labor (DOL) within 90 day of the alleged retaliatory event.
(2) The DOL conducts an investigation, attempts to mediate a settlement, and, if necessary, order temporary relief and issue an initial decision.
(3) Either party may appeal the final results of a DOL investigation to an Administrative Law Judge. Relief from the initial ruling remains in effect.
(5) Either party may appeal to a US circuit court of appeals for review of the final Department of Labor ruling.
Although by statute the Department of Labor normally must complete this process in 120 days, Devine says, the actual range has extended to 14 years, with delays of two to three years common.
However, if an investigation is not completed in 180 days, the employee has the right to seek injunctive relief and have a jury trial in a District Court. "This opportunity long has been the promised land for whistleblowers to have a fair system protecting their legal rights," Devine notes.
Since the SOX legislation was enacted in 2002, about 750 cases have been filed with the DOL, by persons saying they were retaliated against for revealing wrongdoings within a company. "The number of cases has risen, with about 150 in the law's first year and nearly twice that in its third," according to the article, "Whistle-Stop Campaigns," by Kathleen Day, in the April 23, 2006 Washington Post.
Day reports that the majority of cases have been dismissed and that fewer than 100 cases have been settled.
"And only five whistle-blowers have won," she wrote, "though that number dwindled to four last summer when the agency's administrative review board overturned a case on appeal."
In addition, three of those four cases have been appealed to the board, "whose handful of judges so far have not decided an appeal in favor of a whistle-blower," according to Day.
The Washington Law Office of Jason M Zuckerman, PLLC, primarily represents clients in whistleblower cases, including retaliation claims under the Sarbanes-Oxley Act and qui tam actions under the False Claims Act. The firm's principal, Jason Zuckerman, has lectured and written extensively about whistleblower protection laws.
Whistleblower claims generally fall into two categories. One is retaliation claims, which Zuckerman explains, are essentially discrimination claims alleging that an adverse employment action was taken in retaliation for the employee's protected conduct (exposing wrongdoing), and the other are qui tam actions under the False Claims Act, civil fraud claims brought on behalf of the government against companies that have defrauded the government.
In a qui tam action, "A qui tam relator brings forward to a federal prosecutor information demonstrating that a government contractor is engaged in fraud, typically charging the government for a service that was not performed or a product that was not provided," Zuckerman explains.
Nowadays, he says, the consequences of retaliating against a whistleblower can result in more than a civil lawsuit. "In the post-Sarbanes Oxley regulatory climate," Zuckerman warns, "a whistleblower retaliation lawsuit can also result in an investigation by a regulatory agency such as the SEC, and in bad publicity."
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