What Is 'Protected Activity' Under Sarbox Whistleblower Provision?

Lora Bentley

Sarbanes-Oxley whistleblower cases are increasingly in the news of late, whether it's because they drag on for years or because the court introduced a relatively new remedy (or at least a different remedy in the context of a Sarbox claim.)


Yesterday, a Mondaq article from Sutherland Asbill & Brennan discussed yet another case, this one dismissed by a federal district court after finding that the plaintiff didn't prove a causal connection between his termination and the activity that he argued was protected by whistleblower provisions. The finding allowed the court to avoid addressing whether the activity in question was indeed protected under Sarbanes-Oxley.


Though the news of the case itself is not new, the concept of "protected activity" under Sarbox is still rather amorphous, which doesn't offer much help to employers wanting to protect themselves from unnecessary whistleblower litigation.


What's a manager to do in those circumstances? As the coverage of whistleblower claims in the media increases, we would guess that the number of whistleblower claims will increase, so having a plan in place is probably a good idea. As a start, the Mondaq article points out, some employers have found it helpful to use the same documentation and investigation procedures that they have in place for claims of discrimination or sexual harassment.

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