Jottings By An Employer's Lawyer

Thursday, February 13, 2014

5th Circuit's View on Extraterritorial Application of SOX? Not Yet

One of the many issues still to be decided for whistle-blowing claims under Sarbanes Oxley is how far does the law extend, if at all, for conduct outside the United States.

A Colombian national who had alleged his employer, an affiliate of a U.S. company, was violating Colombian tax law hoped to find the answer to that question.

OSHA had rejected his complaint, finding that because the adverse employment actions, the denial of a pay raise and his termination, had occurred outside the U.S. it had no jurisdiction.  Following his appeal, the Administrative Law Judge agreed, finding §806 of SOX has no extra-territorial application. The Administrative Review Board agreed, primarily because there was no connection between the alleged violation of Colombian law and U.S. securities or financial disclosure law.

Undaunted,  he turned to the 5th Circuit Court of Appeals, but fared no better. Agreeing his complaint failed because it failed to allege a violation of  “one of the six enumerated provisions of U.S. law.”

The question of extraterritorial application? A decision for a later day:
Because we affirm on this narrower ground, we need not reach the argument, advanced by the government and Core Labs, that § 806 does not apply extraterritoriality.

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Monday, February 10, 2014

50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives

The statute that among many other things marked the beginning of employment law as a discipline, passed a major hurdle 50 years ago today when it passed the House of Representatives by a vote of 290 to 130.

According to a study of the Civil Rights Act's legislative history, The Longest Debate by Charles and Barbara Whalen, the final vote was 290 to 130.
Supporting the bill were 152 Democrats and 138 Republicans. Opposing it were 96 Democrats (including 86 from the 11 states of the Confederacy) and 34 Republicans, including 10 from the South.
Hard to imagine in light of today's partisan divide in both chambers of Congress.

Regarding Title VII, the bill that was passed and sent to the Senate was actually stronger than the one originally introduced.  It had gone beyond enforcement by persuasion to creating for the first time a private cause of action, albeit one that was much more limited than it would become with the passage of the Civil Rights Act of 1991.

While the passage by the House of Representatives was a major feat standing alone, it was by no means certain that it would amount to more than a grand gesture as the bill now went to the Senate where it awaited a certain filibuster.

I am quite certain that on this date 50 years ago when I was looking forward to the end of 8th grade at Sulphur Springs Junior High School, and the prospect of actually being in high school,  I had no idea that legislation which would change the world as we knew it had achieved such a major step. And certainly no thought that legislation was moving through Congress that would create a new field of law that would ultimately be the way I would spend my entire professional life.

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Saturday, February 08, 2014

Happy 50th, Sex As a Protected Category

Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex.

Some have viewed his amendment as one last ditch effort to sink the bill, others a slightly more nuanced version that seeing that the bill was ultimately going to pass, Representative Smith sought to make the bill better.

Although there was initial push back from the Democratic floor managers, and much joking colloquy, the amendment ultimately passed.

Whichever view is true, there is no doubt how the world has changed because of what happened 50 years ago today.

That’s why there is dearth of legislative history on sex in the bill, leaving the field wide open to the imagination of the litigants.
At the time, as I recall, and from conversations with others closer to the scene, the sex amendment baas offered to muddy the waters; it worked in unforeseen ways.
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