On March 15, 2013, the Department of Labor's
Administrative Review Board ("DOL") reminded employers about the
costly consequences of identifying a whistleblower when it affirmed a $30,000
award against Halliburton, Inc.
In Menendez v. Halliburton Inc., the complainant had raised concerns
about accounting practices with company personnel and company auditors. In
addition, he confidentially filed a complaint with the Securities and Exchange
Commission (SEC). During the course of the SEC's investigation of Halliburton,
the company's General Counsel identified the complainant as the whistleblower
in email communications to the complainant's workgroup.
The complainant accordingly filed a whistleblower complaint under the
Sarbanes-Oxley Act of 2002, claiming that he had been retaliated against
because his identity had been disclosed to coworkers by Halliburton's General
Counsel. Following several administrative decisions and appeals, the DOL
concluded that the complainant was entitled to damages because Halliburton had
failed to show by clear and convincing evidence that it would have disclosed
the complainant's identity as the whistleblower absent protected activity. That
is, the DOL found that Halliburton had retaliated against the complainant when
it disclosed his identity to coworkers because Halliburton could not establish
that it would have disclosed his name if he had not engaged in the protected
activity of filing a complaint with the SEC.
Following the DOL's decision, employers should be especially mindful to train
employees who will be privy to the details of whistleblower complaints under
Sarbanes-Oxley that the identities of any whistleblowers must be kept in strict
confidence. Employers should also be aware that Section 301 of that law
requires that publicly-traded companies establish procedures for "the
confidential, anonymous submission by employees" of concerns about
"questionable accounting or auditing matters."
You can read a copy of the opinion of the Administrative Review Board here.
Read more alerts
by Barran Liebman attorneys
are written by Barran
Liebman attorneys for their clients and friends. Alerts are not
intended as legal advice, but as employment law, labor law, and employee
For more information about LexisNexis
products and solutions connect with us through our corporate site.