Sarbanes-Oxley Whistleblower Protections Apply to Non-Tangible Employment Action

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The U.S. Department of Labor Administrative Review Board (ARB) has concluded in Menendez v. Halliburton, Inc., that an employer's release of a whistleblower's identity to other employees violated the whistleblower's right to confidentiality, which by itself constituted an adverse action against the whistleblower and thus violated the anti-retaliation provisions of the Sarbanes-Oxley Act of 2002 (SOX). The ARB determined that whistleblowers are protected against unfavorable employment action that is "more than trivial" and "non-tangible," even when the whistleblower's reasonable belief was ultimately mistaken.

Background. On May 8, 2006, Anthony Menendez brought a claim against his employer, Halliburton, Inc., under Section 806 of SOX, alleging that he suffered retaliatory adverse action as a result of his report to the U.S. Securities and Exchange Commission (SEC) and his employer's Audit Committee of perceived defective accounting practices.

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