SOX Un-Boxed

By Bill Wright

Prepare for DOL whistleblower litigation.  The Supreme Court has ruled on the scope of the Sarbanes-Oxley Act whistleblower provision.  According to SCOTUS, SOX allows any employee to bring a whistleblower complaint, so long as the employer does business with a publicly-traded company.  At the extreme edge, as the Justices noted, this means, e.g., a company officer might have to defend against a SOX claim, brought against the officer personally, by a nanny or a gardener the officer employs – provided that the nanny or gardener engaged in protected conduct.  For most of us, the ruling means that any employer might face a SOX whistleblower complaint.

Remember, SOX complaints are investigated in the first instance by the U.S. Department of Labor (“DOL”) and the investigator may order remedies, including reinstatement, at the end of the brief investigation.  In such cases, the employer who disagrees with the investigator’s order has to appeal, in the first place, to the DOL’s Office of Administrative Law Judges and the Administrative Review Board.  Lawson v. FMR LLC, No. 12-3 (March 4, 2014).