Supreme Court Solidifies Whistleblower Protections - Whistleblowing - United States

[Gunnar Larson]

https://www.mondaq.com/unitedstates/whistleblowing/1430920/supreme-court-solidifies-whistleblower-protections


A recent United States Supreme Court ruling in Murray v. UBS Securities,
LLC has held that whistleblowers do not need to show retaliatory intent, or
retaliatory animus, on the part of their employers in order to be protected
under federal law, specifically under the whistleblower provisions of the
Sarbanes-Oxley Act (SOX). The Act defines whistleblowing as "any lawful act
done by [an] employee to provide information, cause information to be
provided, or otherwise assist in an investigation regarding any conduct
which the employee reasonably believes constitutes a violation [of
enumerated laws]" or "to file, cause to be filed, testify, or otherwise
participate in a proceeding filed or about to be filed (with any knowledge
of the employer) relating to [such] an alleged violation."1 Whistleblowers
are protected from retaliation by employers under federal law because of
the important role they serve in combatting corruption and maintaining
health, safety, and security, even when doing so requires taking action
against their employer and, as such, risking their livelihood. It is for
this reason that protections for whistleblowers, such as SOX, exist.

The SOX interpretation question in Murray brought before the Supreme Court
was whether retaliatory intent must be proven for an individual to be
protected under federal law. Trevor Murray was fired from UBS for refusing
to skew his research reports on commercial mortgage-backed securities in
favor of UBS's business strategies despite being pressured to do so. A
Manhattan federal jury found for Murray and awarded him $903,300 in
damages. Upon appeal, the U.S. Court of Appeals for the Second Circuit
overturned the award, arguing that SOX required whistleblowers to prove
that their employer acted with retaliatory intent when firing them
(something Murray had not explicitly proven). In a unanimous decision, the
Supreme Court overturned this ruling, finding that the statutory text
included no such intent requirement and that "showing that an employer
acted with retaliatory animus is one way of proving that the protected
activity was a contributing factor in the adverse employment action, but it
is not the only way."

Through the Supreme Court's ruling, the majority of justices make clear
that, while a whistleblower must prove their protected activity was a
contributing factor in the employer's unfavorable personnel action, there
is no requirement a whistleblower show that their employer had retaliatory
intent in terminating them, or otherwise issuing an unfavorable change in
the terms and conditions of employment. As such, now, attorneys no longer
need to prove that retaliatory intent for an act of whistleblowing was the
primary reason for their whistleblower client's termination, but only need
to show that retaliation (even if not retaliatory intent) was a factor
which influenced the termination. While it may be difficult for an employee
to resolutely prove the primary reason for their termination, especially
when an employer can point towards factors they can claim motivated an
acceptable termination, by not requiring proof of retaliatory intent, the
Supreme Court has made whistleblower protections more accessible as a
pathway for wronged employees to advocate for themselves.

As a result of the Supreme Court's ruling, employees may have an easier
time demonstrating that their termination was due to retaliation following
their whistleblowing complaints about alleged illegal actions undertaken by
their employers.

The case is Murray v. UBS Securities LLC , case number 22-660, before the
Supreme Court of the United States.

Footnote

1. https://www.whistleblowers.gov/statutes/sox_amended
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