The scope of an employee’s legal protection against retaliation for whistleblowing depends on several factors, including the state in which the employee works, the specific nature of the misconduct uncovered by the employee and whether or not the employer is publicly traded on a U.S. stock exchange. Federal law provides broad protection for employees who report securities law violations and certain other types of fraudulent conduct, but usually only with respect to publicly traded companies or where the employee has already complained directly to the SEC. For most other forms of whistleblowing the level of protection depends upon state laws, which vary widely from state to state. For example, prior to January 2022 New York and New Jersey essentially fell at either end of the spectrum in terms of whistleblower protections. While New Jersey’s whistleblower protection law is one of the most robust and far-reaching in the nation, New York offered extremely limited whistleblower protection for private sector employees.
However, this changed dramatically as of January 26, 2022 when sweeping amendments to Section 740 of the New York Labor Law took effect. The law now provides that an employer may not take any retaliatory action against an employee because the employee (i) discloses or threatens to disclose to a supervisor or a public body any activity, policy or practice of the employer that the employee reasonably believes is in violation of any law, rule or regulation or poses a substantial and specific danger to the public health and safety; (ii) provides information to, or testifies before, any public body investigating any such activity, policy or practice; or (iii) objects to or refuses to participate in any such activity, policy or practice.
Our firm has one of the leading employee whistleblower practices in the country, representing clients across all sectors of business, finance, academia and professional practices. Our whistleblower clients have included corporate compliance officers, financial services professionals, physicians, lawyers and executives. We are widely recognized for developing dynamic and innovative legal strategies to obtain legal settlements, awards and verdicts for employee whistleblowers.
Our firm has won important court rulings for our clients that have expanded the scope of SOX whistleblower protections. Some examples include:
- O’Mahony v. Accenture – The United States District Court for the Southern District of New York interpreted SOX to protect whistleblowing by our client concerning a multinational company’s scheme to evade the payment of foreign Social Security contributions for U.S. employees it had transferred overseas. [link to court decision]
- Ashmore v. CGI – The United States District Court for the Southern District of New York interpreted SOX to protect whistleblowing by our client concerning a global consulting company’s scheme to use shell companies to evade federal HUD acquisition regulations when bidding on contracts to administer the rental subsidy program established by Section 8 of the Housing Act of 1937.
- Yang v. Navigators Group, Inc. – The United States Court of Appeals for the Second Circuit reversed a lower court decision and ruled that our client (the Chief Risk Officer) was entitled to proceed to trial on claims she engaged in protected activity by communicating to the firm’s general counsel her concerns regarding Navigators’ investment risk models and disclosures in its SEC filings. [link to court decision]
- Wong v. CKX, Inc. – The United States District Court for the Southern District of New York rejected the defendant’s attempt to force our client to arbitrate her SOX whistleblower retaliation claims in a private arbitration forum and permitted her instead to vindicate her rights in court.