Whistleblower Protection under Sarbanes-Oxley Act
NCLC urged the Department of Labor's Administrative Review Board to hold that the Sarbanes-Oxley Act and Dodd-Frank Act do not apply whistleblower protection retroactively for private subsidiaries of publicly traded companies. In this case, the plaintiff alleges she received a poor performance review and was fired from her job as a manager after reporting suspected fraud. NCLC argued in its first brief that the plain language of Sarbanes-Oxley limits whistleblower protection to employees of publicly traded companies. In addition, NCLC argued that the integrated enterprise test, which determines whether two related companies should be treated as one employer, is not a suitable test in this case as it relies on irrelevant factors to define the relationship between companies.
NCLC filed a reply brief further urging the Administrative Review Board to hold that Section 929A of the Dodd-Frank Act does not apply whistleblower protection retroactively. The Dodd-Frank Act, signed into law in July 2010, amended Section 806 of the Sarbanes-Oxley Act to provide whistleblower protection to employees of private subsidiaries and affiliates of publicly traded companies. NCLC argued that federal laws can only be applied retroactively if Congress includes explicit language requiring retroactivity.
The Administrative Review Board held that the Sarbanes-Oxley Act provides whistleblower protection to the employees of any private subsidiary whose financial information is included in the consolidated financial statements of a public company. The ARB also found that no laws were being applied retroactively in this case.
Amicus brief filed 7/15/10. Reply brief filed 8/16/10. Decided 3/31/11.