The Occupational Safety and Health Administration has issued a final rule that clarifies its procedures for handling whistleblower retaliation complaints that are filed in accordance with the Sarbanes-Oxley Act, bringing them in line with modifications required by the Dodd-Frank Act. Notably, the new rule gives aggrieved employees an extra 90 days to file retaliation complaints and allows those allegations to be made orally, not just in writing.
The new rule applies to SOX’ Section 806, which protects employees who report fraudulent activities and violations of Securities Exchange Commission rules that may harm investors in publicly traded companies. SOX prohibits publicly-traded companies and nationally recognized statistical ratings organizations from retaliating against an employee who provides information about conduct they reasonably believe violates federal mail, wire, bank or securities fraud statutes, SEC rules, or any provision of federal law relating to fraud against shareholders.
Employees can file a complaint with OSHA if they believe that their employer has retaliated against them for exercising their rights under SOX. OSHA's Whistleblower Protection Programs web page provides instructions on how to file a complaint and information on worker rights and protections.
OSHA's updated whistleblower procedures allow an employee to file a complaint with the Secretary of Labor within 180 days after an alleged act of retaliation occurs, or after the employee learns of the retaliation. Upon receipt of the complaint, the Secretary must provide written notice to all named parties that details the evidence and explains the rights afforded them throughout the investigation. Respondents have 60 days following the receipt of this information to submit a response, meet with the investigator, present statements from witnesses, and conduct an investigation.
If there is reasonable cause to believe that retaliation has occurred, a preliminary order will require appropriate remedies including, but not limited to: reinstatement to the same seniority status the employee would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The complainant and the respondent have 30 days to file objections to the findings and are entitled to a hearing within 120 days of that filing.
For the most part, the final rule offers minor adjustments to preexisting requirements, most synching timelines and deadlines with the Dodd-Frank Act, including expanding the SOX-mandated statute of limitations for filing a complaint from 90 days to 180 days. The rule also strikes a previous SOX requirement that whistleblower complaints to OSHA under Sarbanes-Oxley “must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” Complaints will not need not be in any particular form, and may be either oral or in writing (including by e-mail or a web-based submission). When a complaint is made orally, OSHA will reduce the complaint to writing. If a complainant is not able to file the complaint in English, the complaint may be filed in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.
OSHA stopped short of including language in the final rule that would allow extraterritorial application of the SOX whistleblower provision, in line with the Securities Exchange Act and Foreign Corrupt Practices Act.