The U.S. Court of Appeals for the Second Circuit recently overturned a jury’s award of $900,000 to a former employee who claimed, in a case brought under the federal Sarbanes-Oxley Act (SOX), that he was unlawfully retaliated against for blowing the whistle on his former employer’s alleged securities violations. According to the appeals court, the trial judge gave the jury the wrong burden of proof standard to use in reaching its verdict.
More specifically, the Second Circuit ruled in Murray v. UBS Securities, No. 20-4202 (2d Cir. August 5, 2022), that the plain language of SOX requires the plaintiff to show that his or her employer had “retaliatory intent,” arguably a more burdensome requirement for a plaintiff than showing that blowing the whistle was simply a “contributing factor” to the employer’s decision to take adverse employment action.
Notably, the Second Circuit’s decision creates a split among the federal appeals courts on the standard of proof a whistleblower must satisfy in order to prevail on a SOX retaliation claim, with both the Fifth and Ninth Circuits endorsing the less burdensome theory the plaintiff unsuccessfully pursued in this case.
Members of the Center for Workplace Compliance (CWC) can read more here.