The most recent win for employers was the Villanueva v. United States Department of Labor
case two weeks ago, which established that in general, SOX protections will not extend to conduct outside the US, especially if the individual involved is not a US citizen.
And late last year, the Administrative Review Board released a statement about Zinn v. American Commercial Lines
to give employers guidance on how to fulfill the requirement that evidence that action taken against whistleblowing employees would have been taken regardless of their activity is “clear and convincing”. Ogletree Deakins lawyer Meg Campbell is co-chair of the company’s Ethics Compliance, Investigations and Whistleblower Response group, and offered the following advice:
Don’t change previous intentions
If an employee slated for termination engages in whistleblowing, there is no reason to delay their termination or change your intentions. Simply continue to operate your business correctly, says Campbell. “If the plans were already in place to terminate someone and then the person engaged in whistleblowing, that doesn’t insulate the person from the consequences of whatever he or she had done or failed to do,” she says.
Don’t make termination decisions alone
Make sure anybody involved in termination decisions considers it a priority to consult with legal compliance officers at your company. If compliance people are aware of the decision, timing and documentation of all terminations, your company’s risk of losing a legal battle can be reduced.
Even in employment-at-will states, it’s important to thoroughly document reasons for termination if you want to stand tall in court. “You want to be absolutely certain that you can point to specific conduct underlining the reason to terminate,” says Campbell.
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Whistleblowing protection acts are part of the legal web that can make termination a dangerous venture. But as far as the Sarbanes-Oxley Act is concerned, the courts have taken steps to make it clearer for employers to navigate.