What Every Employee Of
A Public Company Should Know
About The Sarbanes-Oxley Act

1 2 3 4

16. Does this mean that if my company is engaging in fraud and I disclose that fact to Federal or State regulators I would be protected by the Whistleblower Provision of the Sarbanes-Oxley Act? Answer: Yes, if the company is engaging in any act that would violate any SEC regulations or “any provision of Federal law relating to fraud against shareholders” or any other Federal anti-fraud laws.

17. What happens after my complaint is filed with the Department of Labor? Answer: After the complaint is filed, the Secretary of Labor must give the company an opportunity to make a written response and present witnesses. The Secretary of Labor must conduct an initial investigation to see if the complaint has merit and complete that investigation within sixty (60) days. The Secretary of Labor must issue findings and a preliminary order prescribing relief and both parties have the thirty (30) days to file objections and request a hearing. If a hearing is requested, the Secretary of Labor must issue a final order within one hundred and twenty (120) days after the end of the hearing. Both parties may appeal the final order of the Labor Department to the U.S. Court of Appeals for their respective circuits.

18. What do I have to prove in my complaint to win? Do I have to prove what happened beyond a reasonable doubt? Answer: All the employee has to establish is a “prima facie” case. That means that on its face, the complaint appears viable. To actually win the case an employee must prove the following according to the Department of Labor Regulations: (1) that the employee engaged in a protected activity or conduct [you were an employee of the company and you disclosed fraud, violations of law or other illegal conduct]; (2) the named person [Your Boss] knew, actually or constructively [directly or indirectly], that the employee [blew the Whistle!]engaged in the protected activity [disclosing the fraud or other illegal conduct]; (3) the employee suffered an unfavorable personnel action [fired, harassed, not promoted, letter in the file, denied a promotion, discriminated against by not getting good assignments, bad evaluations, demotion, loss of title or position as supervisor, threats or any other unfavorable action including bad treatment]; and (4) the circumstances were sufficient to raise the inference that the protected activity was likely a contributing factor in the unfavorable action. See 29 C.F.R. Section 1979.104(b)(1).

19. What does all that legal jargon mean about proving my case, do I still need to prove my case beyond a reasonable doubt? Answer: Absolutely not! What the Labor Regulations provide is a much lower standard of proof. You only need to prove that it is “more likely than not” that you were discriminated against or suffered unfavorable treatment because of your Whistleblowing. You don’t have to prove that your Boss actually knew you blew the Whistle, only that he found out directly or indirectly and retaliated against you. The totality of the circumstances test requires only we show that your Whistleblowing was “likely a contributing factor in the unfavorable action.” You don’t need a smoking gun, just enough evidence to show that it is more likely than not that your Boss retaliated against you.

20. What should I do if my Boss starts retaliating against me? Answer: First, contact Bravitt Manley. Mr. Manley will speak to you in confidence and give you specific advice as to how to protect yourself. However, begin to keep notes of incidents that are taken against you, i.e., time, date, incident, persons present and reason for incident. Save all e-mails [print them out and keep hard copies] sent to you that are derogatory, threatening or related to the Whistleblowing incident. Keep track of all persons to whom derogatory statements are made about you by your Boss, his Boss or any other people in management or above you and other employees. Lastly, contact Mr. Manley as soon as a problem arises and remember 90 days is not a very long time.

1 2 3 4

1050 Connecticut Ave NW, 10th Floor
Washington, DC 20036
(p) 202.973.1327 (f) 202.973.1301
e-mail: bravittmanley@verizon.net