SOX Claim Process
Judicial Process for Adjudicating a SOX Claim
1. Department of Labor – OSHA
In order to pursue a SOX whistleblower claim, the claimant must file a written complaint with any office of the Occupational Safety and Health Administration (“OSHA”). The written complaint must be filed within 90 days of the adverse employment action. Unwritten complaints are not sufficient.
The Company-Respondent is not required to file a response to the Complaint unless requested by OSHA.
If OSHA substantiates the claim, it will issue written findings and a preliminary order providing remedies to the employee. Remedies include: reinstatement; back pay with interest; and special damages sustained, including attorney fees.
The Company may appeal the preliminary order by requesting a hearing within 30 days. Requesting a hearing stays enforcement of the preliminary order, except for an order of reinstatement.
2. Hearings Before An Administrative Law Judge
SOX Whistleblower claims are tried before an ALJ in accordance with the procedures of the Office of Administrative Law Judges (“OALJ”). 18 USC Section 1514A(b)(2004).
3. Removal to Federal Court.
Section 806(b) provides that if the DOL has not issued a decision within 180 days of the filing of the complaint, the complainant may refile his or her claims in the appropriate Federal district court, without regard for the amount in controversy. Section 806(c) and its implementing regulation add the requirement that there must be no “delay due to the bad faith of the complainant.”
4. Jury Trial or Arbitration.
A right to jury trial may exist under the Act because it provides for “all relief necessary to make the employee whole.”
Several cases have determined that valid arbitration agreements may be enforced to compel arbitration of SOX Whistleblower claims even if the arbitration agreement does not specifically consent to the arbitration of SOX claims.