This decision could have wide reaching effects because the applicable enforcement provisions are adopted by a range of whistleblower protection statutes, such as Section 806 of the Sarbanes-Oxley Act of 2002. More specifically, the enforcement provisions at issue in this lawsuit are found in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121, et seq.(AIR 21), which the FRSA imports. AIR 21 authorizes OSHA to issue a preliminary order of reinstatement and only authorizes the Secretary to file a civil action to enforce final – not preliminary – orders.

operly pressured" to "skew" business reports and, consequently, commit fraud on the company's shareholders. Murray sued UBS, claiming that it violated Section1514A of the Sarbanes-Oxley Act when it discharged him for reporting the asserted fraud to his supervisor. After a jury found in favor of Murray, UBS appealed the case to the U.S. Court of Appeals for the Second Circuit. The Second Circuit overturned the jury's verdict, opining that the Sarbanes-Oxley Act required whistleblowers to prove "retaliatory intent." Murray sought and obtained Supreme Court review of that holding.The LawThe Sarbanes-Oxley Act prohibits employers from taking adverse action against employees who report "criminal fraud or securities violations" by providing that employers may not "discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee... because of" protected activity.2 To establish such a claim, the employee must follow a burden-shifting framework set forth in 49 U.S.C. § 42121(b)(2)(B) (often called AIR21). That framework requires the employee to prove that engaging in protected activity "was a contributing factor" to adverse employment action against the employee.3 Even if the employee does so, the employer can still win if it proves "by clear and convincing evidence that [it] would have taken the same unfavorable personnel action" against an employee who had not engaged in protected behavior.4The DecisionAccording to the Supreme Court, the Second Circuit held that for an employee to show that engaging in protected activity was a "contributing factor" to an adverse employment action, the employee needed to prove "retaliatory intent" defined as "prejudice" or "animus" – hostility, animosity or ill will by the employer toward the employee's protected conduct. In a unanimous opinion written by Justice Sonia Sotomayor, the Supreme Court reversed. The Court held that the employee-protection provision of the Sarbanes-Oxley Act prohibits the same kind of "discrimination"

If DOL has not issued a final decision on the case within 180 days of the filing of the complaint, and there is no showing that such delay is due to the bad faith of the claimant, the employee may bring an action for de novo review of the claim in federal district court. The enforcement procedures to be utilized by the Department of Labor are those found in 49 U.S.C. § 42121(b), which provides whistleblower protection for airline employees who provide air safety information. Under 49 U.S.C. § 42121(b)(1), the employee’s complaint must be filed with DOL within 90 days after the alleged retaliatory action occurs.

while the decision in Murray is likely to prevent a shift toward requiring whistleblowers to prove retaliatory intent, the practical result will be maintenance of the status quo in this area of law—at least within the DOL.NRC CONSIDERATIONSSimilarly, at the NRC, the Commission directed the NRC staff to look to DOL interpretations of the ERA for its application of its antiretaliation regulatory provisions, such as 10 CFR 50.7 and 70.7.At this time, it is unclear whether the NRC will try to rely on the implication of retaliatory intent for findings of deliberate violations of these provisions, or if additional evidence of a manager’s animus will be required to support a deliberate violation. 18 USC. § 1514A(a) (“No company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee.”).Murray v. UBS Securities, 601 US ___, slip. op. (2024) (Order). 49 USC. § 42121(b) (2) (B) (i). 49 USC. § 42121(b) (2) (B) (ii).Id. at 10.Id. at 11 (quoting 135 Cong. Rec. at 5033).Compare 18 USC. § 1514A(a) (“No company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee.”) (emphasis added) with 42 US Code § 5851: (“A holder of a certificate under section 44704 or 44705 of this title . . . may not discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee [acted lawfully.]”) (emphasis added).[View source.]

ing, the Court reversed a decision by the Second Circuit Court of Appeals and reinstated a jury verdict in favor of the plaintiff. The decision makes clear, once and for all, that plaintiffs need prove only that their protected whistleblowing activity played a role, no matter the magnitude, in their employers’ decision to take a subsequent adverse action. This burden, the Court held, “is meant to be more lenient than most.”Section 1514A(a) states that no employer may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” the employee’s protected whistleblowing activity. Section 1514A contains by reference a mandatory burden-shifting framework enumerated in a separate federal law. Under this framework, a plaintiff whistleblower bears the burden to prove that their protected whistleblowing activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(i). If the plaintiff makes that showing, the burden shifts to the employer to show “by clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of the [protected activity].” 49U.S.C. § 42121(b)(2)(B)(ii).At the district court level, the jury found that the plaintiff proved that his protected activity was a contributing factor in the termination of his employment and that UBS did not show it would have terminated him but for such activity. UBS moved for judgment as a matter of law, arguing that Section 1514A(a) required the plaintiff to prove that his manager, who made the decision to terminate him, possessed retaliatory animus toward him for whistleblowing and dismissal was warranted because the jury was not properly instructed on this point. The district court denied UBS’ motion. On appeal, the Second Circuit reversed, holding that the words “discriminate...because of” in Section 1514A(a) require a showing of “retaliatory intent,” whi

ing activity. If an employer violates this provision, the employee can file a complaint with the Department of Labor seeking reinstatement, back pay, and compensation for any special damages sustain (which would include litigation costs, expert fees, and attorney’s fees). 18 U.S.C. §§1514A(b)(1)(A), (c). If there is no final decision from the Secretary of Labor within 180 days, the employee can file suit in federal court seeking the same relief. 18 U.S. C. §§1514A(b)(1)(B), (c). If the whistleblower does bring an action in federal court, Sarbanes-Oxley directs the court to apply the “legal burdens of proof set forth in section 42121(b) of title 49, United States Code”—a provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). This incorporated burden-shifting framework provides that the whistleblower bears the burden to prove that their protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U. S. C. §42121(b)(2)(B)(i). If the whistleblower makes that showing, the burden shifts to the employer to show “by clear and convincing evidence” that it “would have taken the same unfavorable personnel action in the absence of” the protected activity. 49 U.S.C. §42121(b)(2)(B)(ii). In Murray, claimant worked as a research strategist in a role that required him to certify (consistent with applicable Securities and Exchange Commission regulation) that his reports to customers on the firm’s securities business were independently produced and reflected his own views. The company terminated him shortly after he informed his supervisor that he believed two of his colleagues were engaging in, what he “reasonably believed” to be, unethical and illegal efforts to skew his independent reporting. The claimant originally filed a whistleblower action with the DOL but when the agency did not issue a final decision on his complaint within 180 days, he initiated his “kick out” and filed an action in federal court. The claim w

[2] 18 U.S.C. § 1514A(a)(1).[3] 18 U.S.C. § 1514A(b)(2) (“An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.). [4] 49 U.S.C. § 42121(b)(2)(B)(iii) (emphasis added).[5] 49 U.S.C. § 42121(b)(2)(B)(iv).

n, which addressed the meaning of the contributing-factor standard, leaves SOX as one of the, if not the, most protective whistleblower statutes in the country and may extend well beyond the statute itself. As we have discussed previously, the same standard is used for not only a dozen or so other federal whistleblower statutes, but also California’s general whistleblower law, California Labor Code Sec. 1102.5. The article below provides a brief background on SOX’s contributing-factor standard, the facts of the case, an overview of the decision, and some practical takeaways.BackgroundSOX prohibits publicly traded companies and their contractors from “discharge[ing], demot[ing], suspend[ing], threaten[ing], harass[ing], or in any other manner discriminat[ing] against an employee in the terms and conditions of employment because of any lawful act done by the employee” under 18 U.S.C. § 1514A(a). Any civil action to enforce this prohibition is governed by the burden-shifting framework in 49 U.S.C. § 42121(b). Under this framework, a plaintiff must first show that the protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint” (“Contributing Factor Standard”). If the plaintiff meets this burden, the employer can still avoid liability if it demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action absent the protected activity (“Same-Action Defense”).The Contributing Factor Standard applies to at least a dozen other federal whistleblower statutes, including the Dodd-Frank Act and the Federal Rail Safety Act (“FRSA”).Plaintiff Trevor Murray was a securities strategist who filed a SOX whistleblower claim after he was let go as part of a reduction in force five to six months after complaining that he was being pressured to “skew his research.” There was evidence presented at trial that his manager considered trying to find him another position in the company before he was let go as part of the

other factors tended to affect in any way” the adverse decision.Once an employee meets this burden, the employer then has the burden to demonstrate it “would have taken the same unfavorable personnel action in the absence of the [protected activity].” Stated another way, courts will ask whether the employer would have taken the same action against an identical employee who had not engaged in protected activity.The recent holding from the Supreme Court underscores the importance of strong documentation demonstrating legitimate business reasons for adverse employment actions (terminations, demotions, decreases in pay, etc.). Where an employer has limited documentation predating an employee’s legally protected complaint or an employee is terminated close in time to engaging in activity protected under Sarbanes-Oxley, an employer will face an uphill battle establishing the protected activity was not a factor in the termination decision.Murray v. UBS Sec., LLC, 144 S. Ct. 445, 451 (2024). 49 U. S. C. § 42121(b)(2)(B)(ii)

asually linked);" the Family Medical Leave Act (the retaliatory motive must be "motivating factor").The Sarbanes-Oxley ActIn 2002, SOX was passed responsive to widespread corporate fraud, which shook financial markets and led to huge losses for a wide swath of investors. Major publicly traded corporations including WorldCom, Tyco International, and Enron had purportedly engaged in such practices, eroding confidence in the markets. Estimated losses totaled more than $250 billion. Under SOX, publicly traded corporations must adhere to standardized financial recordkeeping and reporting protocols and promote and not interfere with independent financial audits (among other requirements).To break the "corporate code of silence," SOX prohibits employers from "discriminating against an employee . . . because of protected activity" such as reporting "criminal fraud or securities violations." The SOX standard for proving a retaliation claim derives from the Whistleblower Protection Act of 1989 (49 U.S.C. § 42121(b)(2)(B) (often called AIR21)), one of 16 federal laws with similar whistleblower protections that rely on the same burden-shifting framework. To establish the claim, an employee must prove they were "discriminated" against for engaging in protected activity. Even if the employee does so, the employer can rebut and prevail on the claim if it offers "by clear and convincing evidence that [it] would have taken the same unfavorable personnel action" against an employee if they had not engaged in the protected behavior.Murray v. UBS Securities, LLCA former UBS employee, Trevor Murray, who was a research strategist, filed a whistleblower action alleging that UBS had terminated his employment for engaging in protected activity after Murray informed his supervisor that he believed two leaders were engaging in "unethical and illegal efforts to skew his independent reporting." Murray claimed he was fired for exposing the leaders' conduct and refusing to create misleading reports in advance of their bus