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Law Offices of Elizabeth “Booka” Smith, LLC Blog

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May 27, 2016: SOX Whistleblower Retaliation Claims Bolstered by Recent DOL Decision

On March 30, 2016, the U.S. Department of Labor’s Administration Review Board (ARB) entered its decision in the case of Dietz v. Cypress Semiconductor Corp. (ARB No. 15-017), ruling in favor of Timothy Dietz, a Sarbanes-Oxley (SOX) Act whistleblower who alleged that he was given unfavorable performance reviews and was ultimately forced to resign his employment because he internally protested that the company’s bonus plan was bogus. Mr. Dietz complained about the company’s bonus plan because the plan failed to disclose in offer letters to its employees that the “bonus” plan actually required compulsory salary reductions. The Dietz decision is favorable to SOX whistleblowers in at least two respects. First, the ARB’s decision in Dietz bolsters prior court and agency decisions holding that SOX whistleblowers are not required to explicitly use the words “fraud” or “fraudulent” or to specifically connect the fraudulent scheme to the use of mails or wires, in order to be protected by SOX. Second, the ARB’s decision in Dietz states that a SOX whistleblower who resigns because it is clear to him or her that firing is imminent may be considered to have been constructively discharged and thus protected by SOX. The ARB explained that in cases where the employer has communicated to the whistleblower employee that he or she is about to be terminated, i.e. “the writing is on the wall and the axe is about to fall,” the employee is free to resign and file a SOX retaliation claim – the employee does not have to be fired. The Law Offices of Elizabeth “Booka” Smith, LLC represents executive employees of publicly held companies that are privy to SOX violations by the company and either wish to expose the violations, or have already done so. If you are a current or former employee of a publicly held company and have been retaliated against by your company for complaining about or reporting potential SOX violations, or if you are simply privy to information suggesting that your company is in violation of SOX and are wondering what you should do with that information, CONTACT US to schedule an initial consultation to evaluate potential representation.

 

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