OSHA (Occupational Safety and Health Administration) Issues Substantial Award To SOX (Sarbanes Oxley Act) Whistleblower Claiming “Blacklisting”
According to a news release from OSHA, OSHA recently ordered DISH Network (the “Company”) to pay a former employee over $257,000 in back wages and compensatory damages, plus reasonable attorneys’ fees, and to expunge his employment record after it determined that the Company violated Section 806 of SOX.
The following is based on the above-referenced news release. In summer 2008, Complainant, a marketing department employee of the Company allegedly reported possible financial fraud to his superior. After the Complainant’s employment with the Company ended, he allegedly discovered that the Company: (i) provided a prospective employer with a negative job reference; (ii) refused to do business with the Complainant’s subsequent employer; and (iii) refused to carry a satellite channel after the Company discovered that the he represented the channel. In August 2011, the Complainant filed a SOX whistleblower retaliation complaint with OSHA asserting that he was blacklisted for engaging in protected activity. OSHA determined that the Company violated Section 806 of SOX by purportedly blacklisting the Complainant in retaliation for his alleged protected activity.
This preliminary order is significant for several reasons. At the outset, it may be consistent with a trend, as OSHA has recently issued a number of significant whistleblower awards. Moreover, it serves as a reminder that SOX whistleblower protections can extend to alleged conduct that occurs after the employment relationship has ended (i.e., blacklisting and active interference with subsequent employment).