Image of DOL Adopts Strengthened Sarbanes-Oxley Whistleblower Regulations

DOL Adopts Strengthened Sarbanes-Oxley Whistleblower Regulations

Regulations Implementing Sarbanes-Oxley Whistleblower Protection Law

OSHA has adopted Sarbanes-Oxley whistleblower regulations implementing the Dodd-Frank Act amendments to the Sarbanes-Oxley whistleblower law. The regulations also clarify and improve OSHA’s procedures for handling Sarbanes-Oxley whistleblower claims, as well as to set forth OSHA’s interpretations of SOX.   Some of the significant enhancements include the following:

  • SOX complaints need not be in any particular form. They may be either oral or in writing. And when a complaint is made orally, OSHA will reduce the complaint to writing.
  • Consistent with the ARB’s decisions in Sylvester Parexel Int’l LLC, ARB No. 07–123, (ARB May 25, 2011), the federal court pleading standards established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) do not apply to Sarbanes-Oxley whistleblower complaints filed with OSHA.
  • The final rule clarifies that a SOX whistleblower “need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee’s whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred or is likely to occur.”
  • OSHA notes that its current policy is to request that each party provide the other parties with a copy of all submissions to OSHA that are responsive to the whistleblower complaint. Where the parties do not so provide, OSHA will ensure that each party is provided with such information, redacted as appropriate. OSHA will also ensure that each party is provided with an opportunity to respond to the other party’s submissions.
  • A SOX whistleblower who is reinstated pursuant to an OSHA order of preliminary reinstatement but is subsequently unsuccessful at a hearing on the merits is not required to reimburse the employer for wages earned during the period of reinstatement: “Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of Sarbanes-Oxley. However, the statutory procedural scheme does not allow for reimbursement to the employer if actual preliminary reinstatement was ordered and yet the employer ultimately prevailed. Thus, there is no statutory basis to reimburse an employer in that instance.”

These regulations will help ensure that SOX continues to offer robust protection for whistleblowers. If you are seeking representation in a Sarbanes-Oxley whistleblower case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

Sarbanes-Oxley whistleblower regulations

Guide to Sarbanes-Oxley Whistleblower Retaliation Law

 

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  For example, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, leading whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: “Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.”  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

The guide provides an overview of the key elements of a SOX whistleblower retaliation claim, and the procedures governing the investigation and adjudication of SOX claims.

SOX whistleblower protection

The SOX whistleblower guide addresses the following topics:

WHISTLEBLOWERS PROTECTED BY THE SARBANES-OXLEY ACT

  • Who is protected under SOX’s whistleblower-protection provision

ELEMENTS OF A SOX WHISTLEBLOWER RETALIATION CLAIM

  • Can a whistleblower sue an individual under SOX?

PROTECTED WHISTLEBLOWING

  • Is a SOX whistleblower required to prove shareholder fraud?
  • Does SOX protect whistleblowing about potential violations of federal securities laws?
  • Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?
  • Does SOX-protected conduct require a showing of materiality?
  • What are some types of proof to show that a disclosure is objectively reasonable?
  • Are disclosures made in the course of performing one’s job duties protected?
  • Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower-protection case?
  • Does SOX protect disclosures about fraud on the government or gross mismanagement of a federal contract or grant?
  • Are disclosures about consumer financial fraud protected under SOX?
  • Is there some variation in how courts interpret the scope of SOX protected whistleblowing?

KNOWLEDGE OF PROTECTED CONDUCT

  • Must a whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?

PROHIBITED WHISTLEBLOWER RETALIATION UNDER SOX

  • What acts of retaliation are prohibited by the SOX whistleblower-protection provision?
  • Is constructive discharge a prohibited act of retaliation under SOX?
  • Does SOX prohibit employers from “outing” confidential whistleblowers?
  • Does SOX prohibit post-termination retaliation?
  • Is retaliation that occurred outside of the statute-of-limitations period relevant evidence of retaliation?

PROVING SOX WHISTLEBLOWER RETALIATION (CAUSATION)

  • What is a whistleblower’s burden to prove retaliation under SOX?
  • In a mixed-motive case (where there is evidence of both a lawful and unlawful motive for the adverse action), does the evidence of a legitimate justification for the adverse action negate the whistleblower’s evidence that whistleblowing partially influenced the decision to take the adverse action?
  • Is a SOX whistleblower required to prove that the employer’s justification for the adverse action is false (otherwise known as pretext)?
  • Is a SOX whistleblower required to prove that the employer had a retaliatory motive?
  • Is close temporal proximity sufficient to establish causation?
  • Does subjecting an employee to heightened scrutiny evidence retaliation?

EMPLOYER AFFIRMATIVE DEFENSE

  • What is the employer’s evidentiary burden in a SOX whistleblower-retaliation case?

DAMAGES

  • What damages can a whistleblower recover under SOX?
  • If reinstatement is not feasible, can a judge award front pay in lieu of reinstatement?
  • Does SOX authorize an award of punitive damages?

LITIGATING SOX WHISTLEBLOWER CLAIMS

  • Who administers the whistleblower-protection provision of SOX?
  • What is the statute of limitations for a SOX whistleblower-retaliation case?
  • What level of detail is required in a SOX complaint?
  • Where can a whistleblower file a SOX retaliation complaint?
  • Do mandatory arbitration agreements encompass SOX whistleblower claims?
  • Can OSHA order reinstatement of a SOX whistleblower?
  • Where are SOX whistleblower cases litigated?
  • How can a SOX whistleblower appeal an ALJ’s decision?
  • If a SOX whistleblower prevails before the ALJ, can they appeal part of the ALJ’s decision?
  • Where can a SOX whistleblower appeal an ARB decision?
  • Can a SOX whistleblower bring a retaliation case in federal court?
  • Is there a time limit for filing a SOX complaint in federal court after removing the claim from the Department of Labor?
  • Does the SOX Act authorize jury trials?
  • What is the scope of discovery in a SOX whistleblower case?
  • Do formal rules of evidence apply in SOX whistleblower trials at the Department of Labor?
  • Does Section 806 of SOX preempt other claims or remedies?

Sarbanes-Oxley Whistleblower Attorneys

best sexual harassment attorneys Washington DC Maryland VirginiaThe whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.  Click here to read client testimonials about the firm’s work in SOX whistleblower matters and other employment-related litigation.

If you have suffered retaliation for whistleblowing, contact us at 202-262-8959 to schedule a free preliminary consultation.

To stay abreast of new developments under SOX and other whistleblower protection laws, subscribe to our Whistleblower Protection Law Blog.

Leading whistleblower law firm Zuckerman Law writes extensively about whistleblower protections and is quoted frequently in the media on this topic. Below is a sample of those blog posts and articles:

Avatar of Jason Zuckerman

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.