A Sarbanes-Oxley Act of 2002 (“SOX”) claim begins with United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”), where “no particular form of complaint” is required, except that it must be in writing nd “should contain a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” 29 C.F.R. § 1980.103(b). OSHA then has a duty, if appropriate, to interview the complainant to supplement a complaint that lacked a prima facie claim. 29 C.F.R. § 1980.104(b)(1). If the complaint, as supplemented, alleges a prima facie claim, then OSHA initiates an investigation to determine whether a violation occurred. At some point, OSHA must decide if the complainant has stated a prima facie complaint. When OSHA finishes its investigation and makes a decision, either party may object and ask for a hearing before a Department of Labor Administrative Law Judge. 29 C.F.R. § 1980.106.
SECTION 922 (B) AND (C) AND SECTION 929A OF THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT
|Section 922 (b) and (c) of Dodd Frank amended 18 U.S.C. §1514A|
|§922. WHISTLEBLOWER PROTECTION.|
|(a) [Paragraph (a) of §922 of the DFA has been omitted from the excerpt because it is not a whistleblower provision administered or enforced by the U.S. Department of Labor.](b) Protection for Employees of Nationally Recognized Statistical Rating Organizations – Section 1514A(a) of title 18, United States Code, is amended -|
|(1) by inserting ‘or nationally recognized statistical rating organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c),’ after ’78o(d)),’; and(2) by inserting ‘or nationally recognized statistical rating organization’ after ‘such company’.|
|(c) Section 1514A of Title 18, United States Code -|
|(1) STATUTE OF LIMITATIONS; JURY TRIAL- Section 1514A(b)(2) of title 18, United States Code, is amended –|
|(A) in subparagraph (D) –|
|(i) by striking `90′ and inserting ’180′; and|
(ii) by striking the period at the end and inserting ‘, or after the date on which the employee became aware of the violation.’; and
|(B) by adding at the end the following:|
‘(E) JURY TRIAL- A party to an action brought under paragraph (1)(B) shall be entitled to trial by jury.’.
|2) PRIVATE SECURITIES LITIGATION WITNESSES; NONENFORCEABILITY; INFORMATION- Section 1514A of title 18, United States Code, is amended by adding at the end the following:|
‘(e) Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes-
‘(1) WAIVER OF RIGHTS AND REMEDIES- The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.
‘(2) PREDISPUTE ARBITRATION AGREEMENTS- No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.’.
§929A. PROTECTION FOR EMPLOYEES OF SUBSIDIARIES AND AFFILIATES OF PUBLICLY TRADED COMPANIES.
Section 1514A of title 18, United States Code, is amended by inserting “including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company” after “the Securities Exchange Act of 1934 (15 U.S.C. 78o(d))”.
On July 30, 2002, Congress enacted the Sarbanes-Oxley Act (“SOX”), as part of a comprehensive effort to address corporate misconduct and fraud. The SOX whistleblower protections were included in response to “a culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper authorities . . . but even internally. This ‘corporate code of silence’ not only hampers investigations, but also creates a climate where ongoing wrongdoing can occur with virtual impunity.” See Corporate and Criminal Fraud Accountability Act of 2002, S. Rep. 107-146, at 5 (May 6, 2002). The SOX whistleblower provisions are contained in Title VIII of the SOX, designated as the Corporate and Criminal Fraud Accountability Act of 2002. Section 1514A prohibits covered employers and individuals from retaliating against employees for providing information or assisting in investigations related to certain fraudulent acts. That provision states:
(a) Whistleblower Protection For Employees of Publicly Traded Companies.–No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee–
(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire, radio, TV fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by–(A) a Federal regulatory or law enforcement agency; (B) any Member of Congress or any committee of Congress; or (C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or
(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.
18 U.S.C.A. § 1514A.
To prevail on a § 1514A claim, a complainant must prove by a preponderance of the evidence that: (1) she engaged in activity or conduct that § 1514A protects; (2) the respondent took an unfavorable personnel action against her; and (3) the protected activity was a contributing factor in the adverse personnel action. However, relief may not be granted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected behavior. 29 C.F.R. § 1980.109(a).
§ 240.21F-2 Whistleblower status and retaliation protection.
(a) Definition of a whistleblower. (1) You are a whistleblower if, alone or jointly with others, you provide the Commission with information pursuant to the procedures set forth in § 240.21F-9(a) of this chapter, and the information relates to a possible violation of the federal securities laws (including any rules or regulations thereunder) that has occurred, is ongoing, or is about to occur. A whistleblower must be an individual. A company or another entity is not eligible to be a whistleblower.
(2) To be eligible for an award, you must submit original information to the Commission in accordance with the procedures and conditions described in §§240.21F4, 240.21F-8, and 240.21F-9 of this chapter.