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Courts Grapple with SOX Whistleblower Protections

By Robert P. Lewis and Brian S. Arbetter

Section 806 of the Corporate Accounting and Auditing, Re-ponsibility and Transparency Act of 2002, commonly known as the Sarbanes-Oxley Act (SOX), prohibits publicly traded companies from discharging, demoting, suspending, threatening, harassing, retaliating against or in any other manner discriminating against their employees in the terms and conditions of employment for providing information or otherwise assisting in the investigation of conduct that they reasonably believe constitutes wire fraud, bank fraud, securities fraud or violation of any rule or regulation of the Securities and Exchange Commission (SEC), or any provision of federal law relating to fraud against shareholders. It also prohibits filing, testifying in, participating in or otherwise assisting in a proceeding filed relating to a violation of such fraud laws. Section 806 has proven to be very popular with employees; since SOX's enactment in 2002, over 300 SOX whistleblower claims have been filed.

Courts and administrative law judges have begun grappling with issues concerning the scope of SOX's whistleblower provisions in two types of situations that any U.S.-based multinational corporation might encounter: 1) where the whistleblower is located and the whistleblowing occurred outside the U.S., and 2) where the whistleblower's employer is a nonpublic subsidiary of a publicly traded company.

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