Press & News

Jerry Maatman Published in National Underwriter
08/22/2006

In his article, “ Whistle-Blower Retaliation Liability Cascading” in the August 14 issue of National Underwriter Property & Casualty, Jerry describes the difficulty an employer faces in attempting to disprove a plaintiff’s claims.

He notes that “Retaliation claims often require that an employer prove a negative allegation—that the reason for a personnel decision was business-related, such as poor performance. The employer must establish that its action was not based on an employee asserting his or her legal right to file a claim for workers’ comp, claim discrimination or harassment, or to ‘blow the whistle’ for any reason. This defense is difficult because such questions inherently raise ‘mixed-motive’ issues. Did the employer make the personnel decision for a legitimate business reason or because of the worker's assertion of a claim?”

Jerry explains that since courts typically decline to grant motions for summary judgment, employers are often forced to defend retaliation claims before a jury. The most difficult type of retaliation claim to defend, however, he says, is one brought under a Sarbanes Oxley (SOX) compliance issue. “By statute, an employer has the burden of proof to demonstrate a legitimate, nonretaliatory explanation for its personnel decision relative to the employee asserting a claim. The ‘whistle-blower,’ on the other hand, can establish liability if he or she demonstrates that the ‘whistle-blowing’ was at least one of the several motivating factors for the adverse personnel decision at issue. If the plaintiff in a SOX case establishes liability, the employer must reinstate the worker immediately (even pending further legal proceedings) as one of several remedies.”

He concludes by advising companies that “diligent efforts to substantiate and document legitimate, business-related reasons underlying personnel decisions pays dividends in keeping the company out of legal harm’s way and creating impediments to plaintiff’s lawyers suing on retaliation theories.”