The Sarbanes-Oxley Act (SOX) tide has turned under the Obama Administration’s new Secretary of Labor, Hilda Solis. High-value SOX claims are proliferating; the Occupational Safety and Health Administration is issuing substantial penalties and reinstatement awards; and the Administrative Review Board is increasingly issuing decisions that favor employees. Making this a "perfect storm," federal courts are continuing to issue decisions favoring employees in procedural and substantive areas of SOX litigation.
This trend compels employers to implement a number of measures to minimize the risk of SOX whistleblower claims. These steps include: instituting sophisticated whistleblower hotlines; creating a culture of accountability and integrity; demonstrating responsiveness to internal complaints; developing codes of conduct, ethics policies and corresponding anti-retaliation policies; and providing training on early detection of potential problems, investigations and resolutions of internal complaints.
Where litigation exists or is unavoidable, employers also need to know how to swiftly mount compelling defenses. At a minimum, this requires an understanding of the basic SOX whistleblower doctrine, including the scope of SOX’s coverage, what conduct constitutes "protected activity," methods of establishing that whistleblowing did not influence the challenged employment decision and various other nuanced defenses. This also requires an appreciation for the unique dynamics in defending c-suite decision-makers.
Join Alice Peterson, Chief Ethics Officer at SAI Global Compliance (Americas), David Rowland and Steven Pearlman, Partners, Seyfarth Shaw LLP, in a discussion on these issues. Mr. Pearlman is at the forefront of defending corporations and executives in SOX whistleblower litigation before federal courts and the U.S. Department of Labor and Ms. Peterson developed the Listen Up™ Hotline, Ethics Reporting and Case Management solution technology. |