In Poli v. Jacobs Engineering Group, Inc., ARB No. 11-051, ALJ No. 2011-SOX-027 (ARB Aug. 31, 2012), the Administrative Review Board (“ARB”) held that the Sarbanes-Oxley Act’s statute of limitations was not triggered by a letter placing an employee on “convenience leave.”  In doing so, the ARB clarified what constitutes a “final, definitive, and unequivocal notice of an adverse employment action,” such that the statute of limitations begins to run on a putative complainant.

In Poli, the complainant raised concerns regarding the billing practices of a subcontractor on the project to which he was assigned.  Subsequently, the employer sent complainant a letter informing him that he was being placed on “Company Convenience Leave.”  The letter provided an anticipated return work date and stated that, when that leave ended, “every reasonable effort will be made to return you to the same position, if it is available, or to an equivalent position for which you are qualified.”  The letter, however, also stated that reinstatement was not guaranteed, and that, if the complainant did not return to work after his leave expired, the employer would assume that the complainant had resigned from his position.  The following day, the employer sent a revised letter further explaining the possibilities for employees who were put on “Company Convenience Leave.”  The revised letter provided, “[i]f no assignment is identified within the [Company Convenience Leave] period, you will be voluntarily terminated from Jacobs.”  The complainant was unable to secure another position during the leave period, and, after the end of the leave period, he was terminated.

The complainant filed a complaint alleging retaliation under the Sarbanes-Oxley Act (“SOX”).  At the time of the complaint, SOX required a complainant alleging retaliation to file a complaint with Occupational Safety and Health Administration “not later than 90 days after the date on which the violation occurred.”  18 U.S.C.A. § 1514A(b)(2)(D).[1]  The SOX statute of limitations begins to run when an employee receives “final, definitive, and unequivocal notice of an adverse employment decision” and not on the date the consequences of that decision become painful for the employee.  The issue before the Administrative Law Judge (“ALJ”) was whether the revised letter placing the complainant on “Company Convenience Leave” constituted such final notice of an adverse employment action.  If it was, then the complainant did not timely file his retaliation complaint.  In granting the employer’s motion for summary decision, the ALJ relied on English v. Whitfield, 858 F.2d 957 (4th Cir. 1998), and Rollins v. American Airlines, ARB No. 04-140, ALJ No. 2004-AIR-009 (ARB Apr. 3, 2007), both of which held that the mere possibility that an employee could avoid termination by accepting employment elsewhere with the employer did not negate the effect of a notification of the employer’s intent to terminate the employee’s employment.

The ARB, however, found that English and Rollins were inapposite and reversed the ALJ’s grant of summary decision in favor of the employer.  In doing so, the ARB held that the revised letter did not constitute such final, definitive, and unequivocal notice that the complainant would be terminated at the end of the leave period.  The ARB focused specifically on the language in the letter providing that “every reasonable effort” would be made to return the complainant to the same or equivalent position.  Thus, unlike the employees in English and in Rollins, the complainant was not told unequivocally that this employment would be terminated unless he was able to find another position with the employer.  In addition, the ARB noted that the “Company Convenience Leave” was based on the lack of billable work as opposed to disciplinary action.  The ARB concluded that the “Company Convenience Leave” letters simply did not have the same degree of “finality” evidenced in English and Rollins and remanded the case to the ALJ for further proceedings.

As a result of the ARB’s action, the case has been remanded to the ALJ for a merits hearing.  The employer has no right to immediate review in the federal appellate court with jurisdiction over the place of employment (in this case, the U.S. Court of Appeals for the 11th Circuit).