Disclosure of Whistleblower's Name, Alone, May Be Adverse Employment Action

The Fifth Circuit recently affirmed that identifying a complaining employee while requesting that employees preserve documents for an SEC investigation was a “materially adverse” action under the anti-retaliation provisions of the Sarbanes-Oxley Act. The issue in Halliburton, Inc. v. Administrative Review Board, U.S. Dep’t of Labor arose when Halliburton employee Anthony Menendez made a confidential complaint to the SEC and subsequently made an internal complaint using his company email address and including his name. When the SEC contacted Halliburton to direct the company to retain documents related to the SEC’s investigation, the company suspected that the investigation was related to Mr. Menendez’s complaints. The company sent an email with instructions to preserve documents, because “the SEC has opened an inquiry into the allegations of Mr. Menendez,” which was forwarded by Mr. Menendez’s boss to his department. The Court found that it was “inevitable” that the identifying email would result in ostracism and create “a potential deprivation of opportunities for future advancement.” This is the first circuit court opinion to hold that identifying a whistleblower, alone, can be retaliatory.