Earlier this year, The Network reported on some changes made to the Sarbanes-Oxley (SOX) whistleblower provisions by the enactment of the Dodd-Frank bill. In recent months, the Administrative Review Board (ARB) – the appeals board for decision issued by Administrative Law Judges in the Department of Labor – has made monumental transformations to existing case law regarding whistleblower retaliation claims. The alterations the ARB has made are a clear departure from previous SOX whistleblower case law and revitalized whistleblowing as a public service deserving of protection.
Under 18 U.S.C. § 1514A, it is illegal for any public company subject to SOX to discharge employees, contractors, subcontractors or agents for informing certain entities about certain enumerated SOX violations. If an employee suspects that retaliatory acts were taken against them for their role in reporting a SOX violation, the employee must file a complaint with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act – increased from 90 days by Section 922(b) of the Dodd-Frank Act. After OSHA conducts an investigation, it issues an initial decision. If either party disputes OSHA’s decision, that party may appeal to the Department of Labor Office of Administrative Law Judges. There, the purported whistleblower must establish a prima facie case for SOX protection. In order to establish a prima facie case, the claimant must prove (1) he or she engaged in SOX protected activity, (2) the respondent took unfavorable employment actions against complainant, and (3) the protected activity was a contributing factor to the adverse action.
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