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First OSHA Final Rule Under Dodd-Frank Amends SOX Whistleblower Provisions

November 10, 2011

Photo by darthdowney. Some rights reserved.

On November 3rd, the Occupational Safety and Health Administration published an interim final rule amending its Sarbanes-Oxley whistleblower protection regulations, as required by Sections 922 and 929A of the Dodd-Frank Act.   This, incidentally, is the 8th final rule by a federal agency addressing the topic of Dodd-Frank whistleblower provisions — but the first by an agency other than the SEC or the CFTC.  (Source: Knowledge Mosaic’s Dodd-Frank Rulemaking Tracker.)

The Dodd-Frank Act made several substantive changes to the Sarbanes-Oxley whistleblower protection provisions. First, Section 922(b) of the Dodd-Frank Act added protection for employees from retaliation by nationally recognized statistical rating organizations or their officers, employees, contractors, subcontractors, and agents. Second, Section 922(c) of the Dodd-Frank Act extended the statutory filing period for retaliation complaints under the Sarbanes-Oxley Act from 90 to 180 days after the date on which the violation occurs or after the date on which the employee became aware of the violation.

Section 922(c) of the Dodd-Frank Act also provided parties with a right to a jury trial in district court actions brought under the Sarbanes-Oxley Act’s “kickout’’ provision, which provides that, if the Secretary of Labor has not issued a final decision within 180 days of the filing of the complaint and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate federal district court. And Section 922(c) amended the Sarbanes-Oxley Act to state that the administrative and judicial rights of review may not be waived by any agreement, policy form, or by a pre-dispute arbitration agreement.

All companies with a class of securities registered under the Securities Exchange Act of 1934 and all companies  required to file reports under the Securities Exchange Act  are covered by the Sarbanes-Oxley whistleblower provisions. Section 929A of the Dodd-Frank Act clarified that any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such registering or reporting companies are also subject to those provisions.

The interim final rule is effective immediately. Comments should be submitted on or before January 3, 2012.

For more blogmosaic posts on whistleblower provisions and the Dodd Frank Act, click here.


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