Co-funded by the European Union

USA: Whistleblower Retaliation

  • On 8 February 2024, the U.S. Supreme Court decided on whistleblower protections under the Sarbanes-Oxley Act of 2002. 
  • The case clarifies the standards for proving retaliation against whistleblowers in publicly traded companies.
  • The Supreme Court clarified that whistleblowers are required to show that their protected activity contributed to the adverse employment action without the need to demonstrate retaliatory intent on the employer's part. 

Case Murray v. UBS Securities, LLC, et al., concerns a former research strategist at UBS, who alleged that his termination was retaliation for reporting unethical and potentially illegal conduct by the UBS trading desk. 

He claimed that his dismissal violated the whistleblower protections outlined in the Sarbanes-Oxley Act of 2002, specifically Section 1514A, which safeguards employees of publicly traded companies from retaliation for reporting fraudulent activities or violations of securities laws.

Key points of the decision are the following: 

-      No Need for Retaliatory Intent Proof: The Court held that whistleblowers are not required to prove that their employer acted with retaliatory intent, overturning the Second Circuit's decision that mandated this as part of a Section 1514A claim.

-      "Contributing Factor" Standard Affirmed: Whistleblowers must demonstrate that their protected activity contributed to the unfavorable personnel action against them, shifting the burden to the employer to prove otherwise.

-      Protection Without Proof of Animus: The ruling emphasises that discrimination under Section 1514A does not necessitate an employer's animosity or retaliatory intent towards the whistleblower.

This decision underscores the legal framework protecting employees reporting fraudulent activities, setting significant precedents for employees and employers in publicly traded companies.

Employers should review their internal policies and procedures regarding the handling of whistleblower complaints and the subsequent actions taken against such employees, ensuring that their response to whistleblower reports is not only compliant with legal standards but also devoid of any actions that could be construed as retaliatory, even in the absence of explicit retaliatory intent.

You can find previous decisions on similar cases in IrelandAustralia, and Italy