OSHA Issues Final Rule Under SOX Whistleblower Provision

Author: Ashley Shaw, XpertHR Legal Editor

March 11, 2015

The Occupational Safety and Health Administration (OSHA) has issued a final rule governing whistleblower claims under the Sarbanes-Oxley (SOX) Act. The final rule does not vary much from the interim final rule implemented in 2011 to incorporate changes required by the Dodd-Frank Act, which amended SOX. Workers covered under the rule are those working for publicly traded companies, their subsidiaries, contractors and subcontractors.

The SOX whistleblower provision is designed to protect individuals who report violations of Securities Exchange Commission (SEC) rules and regulations from retaliation. The interim rule established several procedures when processing a SOX whistleblower complaint, including extending the statute of limitations for filing a complaint from 90 to 180 days (as was required under Dodd-Frank). The interim rule also expanded the definition of covered employer.

Under the final rule, if a covered employee files a complaint, OSHA, which enforces SOX along with 21 other laws with whistleblower provisions, will begin an investigation in which the employer must show with clear and convincing evidence that the adverse action would have been taken even without the protected activity. If, at the end of the investigation, OSHA determines that there is reasonable cause to believe that a violation occurred, it will issue a preliminary order for any relief it deems adequate to make the complaining employee whole.

Though the interim rule was open to comments from the public (of which five were received), the final rule made no substantive changes other than allowing parties to a complaint to see each others' filings.

Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, said that the final rule "safeguards investors by protecting whistleblowers who shine a light on illegal or fraudulent conduct that otherwise may go uncorrected."

The final rule took effect March 5, 2015.