The Fourth Circuit Court of Appeals affirmed a Department of Labor Administrative Review Board (ARB) decision holding that a former employee’s termination did not trigger whistleblower protection under the Sarbanes-Oxley Act of 2002 (the Act). The employee was fired from her position as a manager of labor relations, ostensibly because of a conflict of interest stemming from a personal relationship with a superior. The employee alleged that the relationship was a pretext and that she was actually terminated for calling attention to her employer’s failure to collect certain fees from a union and paying employee union members on days they attended union meetings in contravention of the employer’s policy.
The Fourth Circuit agreed with the ARB that the employee’s allegations must be “definitively and specifically related to one of the areas [expressly] accorded protection” in the Act. Although the employee argued, and an administrative law judge had previously found, that the employer’s failure to collect fees “inherently involved the use of mail and wires,” thus triggering the wire fraud provision of the Act, the court affirmed the ARB’s holding that these facts did not satisfy the employee’s burden. To the contrary, the court found that the employee’s actions amounted to “little more than alerting... management to an internal billing issue.” Because mere billing discrepancies are not expressly covered by the Act and because “a billing discrepancy, without more, does not equal fraud,” the court agreed that the employee had failed to adequately allege that she was entitled to whistleblower protection under the Act. (Platone v. U.S. Dep’t of Labor, 2008 WL 5077822 (4th Cir. Dec. 3, 2008))