OSHA's Revision of Sarbanes-Oxley Whistleblower Regulations

The Occupational Safety and Health Administration recently published an interim final rule amending its whistleblower regulations under the Sarbanes-Oxley Act of 2002. Comments on the interim final rule are due by January 3, 2012.

On November 3, 2011, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) published in the Federal Register an interim final rule amending its whistleblower regulations under the Sarbanes-Oxley Act of 2002, as amended (Sarbanes-Oxley). 76 Fed Reg. 68084. The interim final rule was effective upon publication.

OSHA is responsible for receiving and investigating whistleblower complaints under Sarbanes-Oxley and 20 other whistleblower protection statutes. OSHA has amended the Sarbanes-Oxley whistleblower regulations to address amendments to Sarbanes-Oxley's statutory whistleblower provisions made by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), enacted in July 2010. The interim final rule implements the Dodd-Frank amendments, clarifies and improves OSHA's procedures for handling Sarbanes-Oxley whistleblower complaints and makes the procedures for handling Sarbanes-Oxley whistleblower complaints more consistent with the procedures for handling complaints under other whistleblower protection statutes administered by OSHA.

As amended, employees are protected from retaliation by covered persons because the employee, or a person acting on behalf of the employee, has engaged in protected activity. "Covered person" includes: any company that has a class of securities registered under Section 12 of the Securities Exchange Act of 1934 or is required to file reports under Section 15(d) of the Securities Act, including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company; any nationally recognized statistical rating organization; or any officer, employee, contractor, subcontractor or agent of such company or nationally recognized statistical rating organization.

Protected activity occurs when an employee lawfully provides information or causes information to be provided, or otherwise assists in an investigation regarding any conduct the employee reasonably believes constitutes a violation of certain laws or regulation: a fraud or swindle; wire, radio or television fraud; bank fraud; securities and commodities fraud; a violation of a rule or regulation promulgated by the U.S. Securities and Exchange...