In Deltek, Inc. v. Dep’t of Labor, the United States Court of Appeals for the Fourth Circuit, in a split decision, affirmed the DOL Administrative Review Board’s decision to award a whistleblower four years of advance pay, totaling $300,352, and required the company to maintain its tuition reimbursement program for the whistleblower, valued at $30,000. The court found the company had retaliated against the whistleblower in violation of Section 806 of the SOX Act. The former financial analyst claimed her employer wrongly terminated her for reporting her reasonable belief that her employer was deliberately subjecting invoices to baseless disputes in an effort to hide a telecommunications budget shortfall and obfuscate the true financial condition of the IT Department.

This decision highlights the risk of oversized front-pay awards in SOX cases. Although it is an administrative law judge’s (ALJ) and the court’s stated preferences to reinstate employees rather than award front-pay for unlawful discharge in whistleblower cases, courts are willing to award other relief, particularly where the parties have a history of animosity. Indeed, the SOX Act does not explicitly mention front-pay as a remedy at all, entitling a prevailing employee only such “relief necessary to make the employee whole,” including reinstatement, back pay with interest, and various other fees and costs. Nonetheless, the Fourth Circuit elected to follow previous Occupational Safety and Health Administration (OSHA) cases that awarded front-pay under the SOX Act and other whistleblower statutes. The court also rejected the employer’s argument that front-pay should be limited because the employer would have found “after-acquired evidence” unrelated to whistleblowing activities that would have justified terminating the whistleblower.