Post-Employment Retaliation

A long-time employee with a track record of success witnesses and discloses what she believes to be unlawful activity at her company, ABC Corp. Her relationship with management sours and, after a brief attempt at dispute resolution paid for by the company, she is soon after “down-sized” in a reduction in force (RIF).

Ready to move on, the employee begins applying for new positions, but cannot gain any traction. She learns that, in addition to informing potential employers about the RIF, ABC Corp. has falsely criticized the employee's performance. The employee later learns that her security clearance is in jeopardy because ABC provided misleading information to the Department of Defense (DOD). Next, the employee receives a 1099 in the mail in which ABC attributes to her as earned income the costs of the pre-RIF attempt at dispute resolution. Finally, ABC serves the employee with a multi-count complaint alleging violation of trade secrets, conversion, tortious interference, and other baseless causes of action.

From the perspective of employee counsel, it is important to understand how to proceed given this hypothetical but plausible scenario. The kitchen-sink approach is available ' allege everything and fight for each claim to the bitter end. But that is a costly proposition for the client and time consuming for the attorney. The better approach, in our estimation, is to focus your efforts on only those claims, and identify only those acts by the employer, that a court is likely to find “adverse actions” under the applicable statute. In addition to saving you time and your client money, this strategy will ultimately help to establish your credibility with the court.

And management counsel needs to be able to advise its client (here, ABC Corp.) on those actions that it can and cannot properly take with respect to its former employee. As management counsel, you would hope that ABC comes to you before it speaks with prospective employers and the DOD about the former employee, issues her a 1099, or files a complaint against her. Understanding how courts are likely to view those and other post-employment acts will enable you to protect your client from possible liability in its treatment of its former employees.

In this article, we discuss the ways in which courts have traditionally examined post-employment retaliation claims and provide insight into how a court (or board) is likely to rule when an employee brings claims under two of the most widely utilized whistleblower protection statutes ' the Sarbanes Oxley Act (SOX) and the False Claims Act (FCA). This article does not address claims of defamation or other common law causes of action. Rather, it focuses solely on a plaintiff's ability to bring claims of retaliation under these, and other, whistleblower and anti-retaliation statutes.

The Framework for Analyzing Post-Employment Retaliation Claims

Under almost any anti-retaliation statute, an employee must demonstrate that: 1) she made a protected disclosure; 2) she suffered an adverse employment action; and 3) there was some impermissible causal connection between her disclosure and the adverse employment action. Analyzing post-separation retaliation claims really focuses on the second prong of the anti-retaliation framework. One must understand the circumstances under which a post-separation act by an employer will be deemed an adverse employment action.

Courts look at the plain language of the statute to determine whether a statute protects against post-employment acts of retaliation. As a starting point, look at the statutory definition of “employee.” Statutes that expressly cover “present or former” employees are more likely to protect against post-employment retaliation. See, e.g., 20 C.F.R. ' 1980.101 (regulations discussing the implementation of SOX).

Second, examine the scope of the discriminatory acts identified by the statute. For example, a statute may limit coverage to discrimination with respect to “compensation, terms, conditions, or privileges of employment.” See, e.g., 42 U.S.C. ' 2000e-2. Other statutes have a broader scope. See, e.g., 42 U.S.C. ' 12203 (providing “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter ' “). As discussed more fully below, such language is not necessarily dispositive as to whether post-employment acts of retaliation are covered by a statute, but it provides a starting point for the analysis.

Burlington Northern Provides the Framework for Analyzing Adverse Actions

Before discussing post-employment adverse actions as they relate to whistleblowers, it is important to recognize the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). There, the Court determined the breadth of adverse actions under Title VII's discrimination and anti-retaliation provisions. The Court first noted that the language of Title VII's anti-discrimination provision includes the phrase, “compensation, terms conditions, or privileges of employment,” and that such language “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace.” Id. at 62. But it found that unlike the anti-discrimination provision, Title VII's anti-retaliation provision has no such limiting language. See 42 U.S.C. ' 2000e-3 (providing, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ' because he has opposed any practice made an unlawful employment practice by this subchapter'”). Because of the lack of limiting language, the Court held that the scope of Title VII's anti-retaliation provision “extends beyond work-place related or employment-related retaliatory acts.” Burlington Northern , 548 U.S. at 67.

But the Court did impose a materiality requirement on claims of retaliation under the act. To be actionable, the retaliatory conduct must be such that “it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68. This decision ' in combination with the opinion in Robinson v. Shell Oil Co. , 519 U.S. 337 (1997) in which the Supreme Court held that post-employment acts of retaliation are actionable under Title VII ' indicates how courts are likely to analyze plaintiffs' post-separation claims.

The Evolution of Post-Separation Retaliation Under SOX

SOX provides that no employer may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” because that employee has engaged in SOX-protected activity or conduct. See 18 U.S.C. '1514A(a); see also 29 C.F.R. ' 1980.102(a) (for implementing regulations). The implementing regulations define an employee as “an individual presently or formerly working for a company ' or an individual whose employment could be affected by a company.” 20 C.F.R. ' 1980.101.

For many years, the Administrative Review Board (the ARB) held that post-employment retaliation was not actionable under SOX. For example, in Harvey v. Home Depot U.S.A., Inc., the ARB found that allegations of post-employment retaliation were “not [] adverse personnel action[s] that affected the terms and conditions of [complainant's] employment with that employer.” ARB Nos. 04-114, 04-115 slip op. (ARB June 2, 2006) (SOX). The ARB reasoned that, because the employee no longer worked for the employer at the time of the alleged harassment, the actions could not have affected the “terms and conditions” of the employee's employment. Id' Likewise, in Farnham v. Int'l Mfg., where an employer brought a post-termination suit against a former employee, the ARB found that bringing the suit did not affect the “terms and conditions” of the employee's employment. ARB No. 07-095 slip op. (ARB Feb. 6, 2009) (SOX).

In 2010, the ARB started to take a more employee-friendly approach in analyzing what constitutes a post-employment adverse action. For example, in Rowland v. Prudential Equity Grp., ARB No. 08-108 slip op. (ARB Jan 13, 2010) (SOX), the ARB, relying heavily upon the Supreme Court's reasoning in Burlington Northern, held that the anti-retaliation provision in SOX embraced as an adverse action a former employer's filing suit against an ex-employee to enforce an arbitration award. But the ARB still tied the action back to the “terms and conditions” of the complainant's employment, as the former employer's agreement to pay arbitration costs was an “employment benefit.” Id . at 9-10. Because the payment of those costs was an employment benefit received by the employee during the course of her employment, the employer's suit to force her to pay those costs was, indeed, an adverse employment action under SOX. Id . at 10.

Finally, in Menendez v. Halliburton, Inc., ARB Nos. 09-002, 09-003 slip op. (ARB Sept. 13, 2011) (SOX), the ARB held that “'terms and conditions of employment' are not significant limiting words and should be construed broadly within the remedial context of [SOX].” Id. (emphasis added). The ARB went on to discuss the “very different language” in SOX and the comparable provisions of Title VII. It ultimately, held that “an adverse action is simply something unfavorable to an employee, not necessarily retaliatory or illegal,” and is not limited to “economic or employment related actions.” Id.

Despite the ARB's limiting decisions in Harvey v. Home Depot U.S.A., Inc. and Farnham v. Int'l Mfg., the ARB, for a long time, did find blacklisting an adverse employment action under SOX. See, e.g., Egenrieder v. Metro. Edison/G.P.U. 1985-ERA-23 (Sec'y Apr. 20, 1987). The ARB's recent trend toward a more expansive understanding of adverse actions under SOX, particularly as it relates to post-employment retaliation, squares well with its precedent related to blacklisting.

The ARB's current jurisprudence is summed up in a 2013 opinion from the Office of Administrative Law Judges (OALJ). In Fernandez v. Navistar International Corp., 2011-SOX-31 (Jan. 28, 2013), the OALJ found that: 1) “alleged adverse action[s] need not be 'employment related' to support a cognizable claim under SOX”; and 2) “post-employment adverse actions are within the scope of 'adverse actions' under SOX.”

The FCA and Its More Employer-Friendly View of Retaliation

The anti-retaliation provision of the False Claims Act provides that:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee … in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

31 U.S.C. ' 3730(h) (emphasis added).

Relying on the Supreme Court's holding in Burlington Northern, many federal district courts have found that the “in the terms and conditions of employment” language limits the scope of adverse actions to those within the workplace that directly affect employment.

For example, in United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186 (D.D.C. 2011), the U.S. District Court for the District of Columbia analyzed whether Kane's filing of allegedly frivolous counterclaims and its allegedly defamatory statements, each occurring after Head's termination, were adverse actions under the FCA. The district court concluded that, “Section 3730(h) does not apply to retaliatory actions Defendant Kane Company allegedly took against Relator after his employment with the Company ended and which did not involve 'the terms and conditions of [his] employment.'” Id. at 208.

The Head opinion leaves open the possibility for claims of post-employment retaliation under the FCA where the acts by the employer can be tied back to the terms and condition of an employee's employment. But the body of case law developing across the circuits is even less generous to employees. In Master v. LHC Grp. Inc., CIV.A. 07-1117, 2013 WL 786357 (W.D. La. Mar. 1, 2013), the District Court for the Western District of Louisiana reviewed the various district court decisions dealing with post-separation retaliation under the FCA and concluded that not a single court had allowed such post-employment acts within the embrace of the anti-retaliation provisions of the FCA. Id. at 7 (stating, “It appears that all courts to have addressed this issue have similarly held that ' 3730 does not provide a remedy for post-employment retaliation.”). Importantly, no court of appeals in any circuit has explicitly ruled that the FCA does not embrace post-separation retaliation.

Conclusion and Takeaways

This discussion demonstrates that post-separation retaliation is more likely to be considered an adverse action by the Administrative Review Board in SOX cases than by a district court in FCA cases. A perhaps overly simplistic conclusion is that plaintiff's counsel, where an employee has experienced some post-employment retaliation, should only proceed under SOX and through the administrative process. Conversely, if an employee's only recourse is the FCA's anti-retaliation provision, management counsel could advise its clients to take an aggressive posture toward former employees. Indeed, under the current holdings from the district courts, none of the actions taken by ABC Corp. in the introductory hypothetical, each of which occurred after the employee's separation, are adverse actions under the FCA.

That being said, a more nuanced takeaway is that both management and employee counsel must closely examine the applicable statutory language and the nature of the purported adverse action to determine how a court (or the ARB) will treat a particular post-employment act by the employer. If the operative statute contains limiting language such as “in the terms and conditions of employment,” management counsel may safely bet that a court will not find post-employment actions by the employer are covered. But, again, one should note that, at least in the FCA context, the Supreme Court and the courts of appeal have not yet determined the scope of post-employment actions that may violate the statute's anti-retaliation provisions. Particularly egregious acts of retaliation may result in a court (like the ARB with SOX) changing course to allow for a more expansive reading of the FCA's anti-retaliation provision. For this reason, counsel should advise its corporate clients to avoid acts that could be viewed as retaliatory, even when it is unlikely that the would-be plaintiff (or complainant) could avail himself of the more employee-friendly administrative process before the OALJ and ARB.

Plaintiff's counsel should recognize that the ARB is trending toward a more expansive view of adverse actions under SOX ' a view that is likely to embrace post-separation retaliation. That being said, plaintiff's counsel can avoid potential pitfalls by tying a retaliatory act back to the “terms and conditions” of their client's employment. And management counsel will try to distance the adverse action from the “terms and conditions” of the employment relationship.

If nothing else, it is important to recognize that post-separation retaliation claims are viewed differently depending upon the operative statute. Management counsel should carefully examine all of the potential causes of action a departing employee may have and determine the extent to which any acts by the ex-employer may be deemed “adverse actions” in a claim of post-employment retaliation. Counsel should advise their corporate clients to refrain from any acts until the company's exposure is analyzed; without that analysis, you may hand your counterpart on the plaintiff's side the gift of a viable claim.

Adam Augustine Carter is a principal and R. Scott Oswald is the managing principal of The Employment Law Group, P.C., based in Washington, D.C. Mr. Oswald handles all manner of employment discrimination cases, including those litigated under Title VII and the Fair Labor Standards Act. Mr. Carter works closely with clients who suffer discrimination or retaliation under civil rights and whistleblower laws.

A long-time employee with a track record of success witnesses and discloses what she believes to be unlawful activity at her company, ABC Corp. Her relationship with management sours and, after a brief attempt at dispute resolution paid for by the company, she is soon after “down-sized” in a reduction in force (RIF).

Ready to move on, the employee begins applying for new positions, but cannot gain any traction. She learns that, in addition to informing potential employers about the RIF, ABC Corp. has falsely criticized the employee's performance. The employee later learns that her security clearance is in jeopardy because ABC provided misleading information to the Department of Defense (DOD). Next, the employee receives a 1099 in the mail in which ABC attributes to her as earned income the costs of the pre-RIF attempt at dispute resolution. Finally, ABC serves the employee with a multi-count complaint alleging violation of trade secrets, conversion, tortious interference, and other baseless causes of action.

From the perspective of employee counsel, it is important to understand how to proceed given this hypothetical but plausible scenario. The kitchen-sink approach is available ' allege everything and fight for each claim to the bitter end. But that is a costly proposition for the client and time consuming for the attorney. The better approach, in our estimation, is to focus your efforts on only those claims, and identify only those acts by the employer, that a court is likely to find “adverse actions” under the applicable statute. In addition to saving you time and your client money, this strategy will ultimately help to establish your credibility with the court.

And management counsel needs to be able to advise its client (here, ABC Corp.) on those actions that it can and cannot properly take with respect to its former employee. As management counsel, you would hope that ABC comes to you before it speaks with prospective employers and the DOD about the former employee, issues her a 1099, or files a complaint against her. Understanding how courts are likely to view those and other post-employment acts will enable you to protect your client from possible liability in its treatment of its former employees.

In this article, we discuss the ways in which courts have traditionally examined post-employment retaliation claims and provide insight into how a court (or board) is likely to rule when an employee brings claims under two of the most widely utilized whistleblower protection statutes ' the Sarbanes Oxley Act (SOX) and the False Claims Act (FCA). This article does not address claims of defamation or other common law causes of action. Rather, it focuses solely on a plaintiff's ability to bring claims of retaliation under these, and other, whistleblower and anti-retaliation statutes.

The Framework for Analyzing Post-Employment Retaliation Claims

Under almost any anti-retaliation statute, an employee must demonstrate that: 1) she made a protected disclosure; 2) she suffered an adverse employment action; and 3) there was some impermissible causal connection between her disclosure and the adverse employment action. Analyzing post-separation retaliation claims really focuses on the second prong of the anti-retaliation framework. One must understand the circumstances under which a post-separation act by an employer will be deemed an adverse employment action.

Courts look at the plain language of the statute to determine whether a statute protects against post-employment acts of retaliation. As a starting point, look at the statutory definition of “employee.” Statutes that expressly cover “present or former” employees are more likely to protect against post-employment retaliation. See, e.g., 20 C.F.R. ' 1980.101 (regulations discussing the implementation of SOX).

Second, examine the scope of the discriminatory acts identified by the statute. For example, a statute may limit coverage to discrimination with respect to “compensation, terms, conditions, or privileges of employment.” See, e.g., 42 U.S.C. ' 2000e-2. Other statutes have a broader scope. See, e.g., 42 U.S.C. ' 12203 (providing “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter ' “). As discussed more fully below, such language is not necessarily dispositive as to whether post-employment acts of retaliation are covered by a statute, but it provides a starting point for the analysis.

Burlington Northern Provides the Framework for Analyzing Adverse Actions

Before discussing post-employment adverse actions as they relate to whistleblowers, it is important to recognize the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006). There, the Court determined the breadth of adverse actions under Title VII's discrimination and anti-retaliation provisions. The Court first noted that the language of Title VII's anti-discrimination provision includes the phrase, “compensation, terms conditions, or privileges of employment,” and that such language “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace.” Id. at 62. But it found that unlike the anti-discrimination provision, Title VII's anti-retaliation provision has no such limiting language. See 42 U.S.C. ' 2000e-3 (providing, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ' because he has opposed any practice made an unlawful employment practice by this subchapter'”). Because of the lack of limiting language, the Court held that the scope of Title VII's anti-retaliation provision “extends beyond work-place related or employment-related retaliatory acts.” Burlington Northern , 548 U.S. at 67.

But the Court did impose a materiality requirement on claims of retaliation under the act. To be actionable, the retaliatory conduct must be such that “it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68. This decision ' in combination with the opinion in Robinson v. Shell Oil Co. , 519 U.S. 337 (1997) in which the Supreme Court held that post-employment acts of retaliation are actionable under Title VII ' indicates how courts are likely to analyze plaintiffs' post-separation claims.

The Evolution of Post-Separation Retaliation Under SOX

SOX provides that no employer may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” because that employee has engaged in SOX-protected activity or conduct. See 18 U.S.C. '1514A(a); see also 29 C.F.R. ' 1980.102(a) (for implementing regulations). The implementing regulations define an employee as “an individual presently or formerly working for a company ' or an individual whose employment could be affected by a company.” 20 C.F.R. ' 1980.101.

For many years, the Administrative Review Board (the ARB) held that post-employment retaliation was not actionable under SOX. For example, in Harvey v. Home Depot U.S.A., Inc. , the ARB found that allegations of post-employment retaliation were “not [] adverse personnel action[s] that affected the terms and conditions of [complainant's] employment with that employer.” ARB Nos. 04-114, 04-115 slip op. (ARB June 2, 2006) (SOX). The ARB reasoned that, because the employee no longer worked for the employer at the time of the alleged harassment, the actions could not have affected the “terms and conditions” of the employee's employment. Id' Likewise, in Farnham v. Int'l Mfg., where an employer brought a post-termination suit against a former employee, the ARB found that bringing the suit did not affect the “terms and conditions” of the employee's employment. ARB No. 07-095 slip op. (ARB Feb. 6, 2009) (SOX).

In 2010, the ARB started to take a more employee-friendly approach in analyzing what constitutes a post-employment adverse action. For example, in Rowland v. Prudential Equity Grp., ARB No. 08-108 slip op. (ARB Jan 13, 2010) (SOX), the ARB, relying heavily upon the Supreme Court's reasoning in Burlington Northern, held that the anti-retaliation provision in SOX embraced as an adverse action a former employer's filing suit against an ex-employee to enforce an arbitration award. But the ARB still tied the action back to the “terms and conditions” of the complainant's employment, as the former employer's agreement to pay arbitration costs was an “employment benefit.” Id . at 9-10. Because the payment of those costs was an employment benefit received by the employee during the course of her employment, the employer's suit to force her to pay those costs was, indeed, an adverse employment action under SOX. Id . at 10.

Finally, in Menendez v. Halliburton, Inc., ARB Nos. 09-002, 09-003 slip op. (ARB Sept. 13, 2011) (SOX), the ARB held that “'terms and conditions of employment' are not significant limiting words and should be construed broadly within the remedial context of [SOX].” Id. (emphasis added). The ARB went on to discuss the “very different language” in SOX and the comparable provisions of Title VII. It ultimately, held that “an adverse action is simply something unfavorable to an employee, not necessarily retaliatory or illegal,” and is not limited to “economic or employment related actions.” Id.

Despite the ARB's limiting decisions in Harvey v. Home Depot U.S.A., Inc . and Farnham v. Int'l Mfg., the ARB, for a long time, did find blacklisting an adverse employment action under SOX. See, e.g., Egenrieder v. Metro. Edison/G.P.U. 1985-ERA-23 (Sec'y Apr. 20, 1987). The ARB's recent trend toward a more expansive understanding of adverse actions under SOX, particularly as it relates to post-employment retaliation, squares well with its precedent related to blacklisting.

The ARB's current jurisprudence is summed up in a 2013 opinion from the Office of Administrative Law Judges (OALJ). In Fernandez v. Navistar International Corp., 2011-SOX-31 (Jan. 28, 2013), the OALJ found that: 1) “alleged adverse action[s] need not be 'employment related' to support a cognizable claim under SOX”; and 2) “post-employment adverse actions are within the scope of 'adverse actions' under SOX.”

The FCA and Its More Employer-Friendly View of Retaliation

The anti-retaliation provision of the False Claims Act provides that:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee … in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

31 U.S.C. ' 3730(h) (emphasis added).

Relying on the Supreme Court's holding in Burlington Northern, many federal district courts have found that the “in the terms and conditions of employment” language limits the scope of adverse actions to those within the workplace that directly affect employment.

For example, in United States ex rel. Head v. Kane Co. , 798 F. Supp. 2d 186 (D.D.C. 2011), the U.S. District Court for the District of Columbia analyzed whether Kane's filing of allegedly frivolous counterclaims and its allegedly defamatory statements, each occurring after Head's termination, were adverse actions under the FCA. The district court concluded that, “Section 3730(h) does not apply to retaliatory actions Defendant Kane Company allegedly took against Relator after his employment with the Company ended and which did not involve 'the terms and conditions of [his] employment.'” Id. at 208.

The Head opinion leaves open the possibility for claims of post-employment retaliation under the FCA where the acts by the employer can be tied back to the terms and condition of an employee's employment. But the body of case law developing across the circuits is even less generous to employees. In Master v. LHC Grp. Inc., CIV.A. 07-1117, 2013 WL 786357 (W.D. La. Mar. 1, 2013), the District Court for the Western District of Louisiana reviewed the various district court decisions dealing with post-separation retaliation under the FCA and concluded that not a single court had allowed such post-employment acts within the embrace of the anti-retaliation provisions of the FCA. Id. at 7 (stating, “It appears that all courts to have addressed this issue have similarly held that ' 3730 does not provide a remedy for post-employment retaliation.”). Importantly, no court of appeals in any circuit has explicitly ruled that the FCA does not embrace post-separation retaliation.

Conclusion and Takeaways

This discussion demonstrates that post-separation retaliation is more likely to be considered an adverse action by the Administrative Review Board in SOX cases than by a district court in FCA cases. A perhaps overly simplistic conclusion is that plaintiff's counsel, where an employee has experienced some post-employment retaliation, should only proceed under SOX and through the administrative process. Conversely, if an employee's only recourse is the FCA's anti-retaliation provision, management counsel could advise its clients to take an aggressive posture toward former employees. Indeed, under the current holdings from the district courts, none of the actions taken by ABC Corp. in the introductory hypothetical, each of which occurred after the employee's separation, are adverse actions under the FCA.

That being said, a more nuanced takeaway is that both management and employee counsel must closely examine the applicable statutory language and the nature of the purported adverse action to determine how a court (or the ARB) will treat a particular post-employment act by the employer. If the operative statute contains limiting language such as “in the terms and conditions of employment,” management counsel may safely bet that a court will not find post-employment actions by the employer are covered. But, again, one should note that, at least in the FCA context, the Supreme Court and the courts of appeal have not yet determined the scope of post-employment actions that may violate the statute's anti-retaliation provisions. Particularly egregious acts of retaliation may result in a court (like the ARB with SOX) changing course to allow for a more expansive reading of the FCA's anti-retaliation provision. For this reason, counsel should advise its corporate clients to avoid acts that could be viewed as retaliatory, even when it is unlikely that the would-be plaintiff (or complainant) could avail himself of the more employee-friendly administrative process before the OALJ and ARB.

Plaintiff's counsel should recognize that the ARB is trending toward a more expansive view of adverse actions under SOX ' a view that is likely to embrace post-separation retaliation. That being said, plaintiff's counsel can avoid potential pitfalls by tying a retaliatory act back to the “terms and conditions” of their client's employment. And management counsel will try to distance the adverse action from the “terms and conditions” of the employment relationship.

If nothing else, it is important to recognize that post-separation retaliation claims are viewed differently depending upon the operative statute. Management counsel should carefully examine all of the potential causes of action a departing employee may have and determine the extent to which any acts by the ex-employer may be deemed “adverse actions” in a claim of post-employment retaliation. Counsel should advise their corporate clients to refrain from any acts until the company's exposure is analyzed; without that analysis, you may hand your counterpart on the plaintiff's side the gift of a viable claim.

Adam Augustine Carter is a principal and R. Scott Oswald is the managing principal of The Employment Law Group, P.C., based in Washington, D.C. Mr. Oswald handles all manner of employment discrimination cases, including those litigated under Title VII and the Fair Labor Standards Act. Mr. Carter works closely with clients who suffer discrimination or retaliation under civil rights and whistleblower laws.