Workplace Issues

Supreme Court Expands Scope of SOX Whistleblower Rule

Employees of contractors and subcontractors to public companies are now protected against retaliation.
David McCannMarch 4, 2014

Attorneys that represent companies reacted with surprise and criticism to a Supreme Court ruling Tuesday that vastly expanded the scope of the Sarbanes-Oxley Act’s whistleblower protections.

At issue in the case, Lawson v. FMR, was whether employees of public companies’ privately held contractors are protected by the whistleblower provisions, in addition to employees of the public companies themselves. In a 6-3 decision, the court supported the more expansive interpretation.

Two former employees of FMR, an investment adviser hired by Fidelity Investments to manage mutual funds, claimed they were fired in retaliation for filing claims alleging the company had violated federal laws and Securities and Exchange Commission regulations relating to fraud against shareholders.

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The decision revolved around an interpretation of language in the SOX provision stating that no “officer, employee, contractor, subcontractor or agent of [a public] company may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee” who blows a whistle. The court interpreted “an employee” as including an employee of a contractor.

Given the wording in question, that interpretation may indeed seem more reasonable than excluding such a person from protection. But Lloyd Chinn, a labor attorney with law firm Proskauer and co-head of its whistleblowing and retaliation group, argues that the intention of SOX was to regulate public companies only.

“It seems odd that Congress would have included 6 million companies within the scope of the law” without explicitly spelling it out, Chinn says. “What’s happening here is that the statute is becoming unmoored from its purpose and from the scope intended at the time it was passed.” He notes that section headings in the law and legislative history both support the narrower interpretation, which is what the First Circuit Court of Appeals had settled on — a decision that’s now been overturned by the Supreme Court ruling.

Writing for the minority, Justice Sonia Sotomayor offered some extreme examples to illustrate a key reason for her dissent: that the ruling gives the whistleblower provision “a stunning reach.”

“As interpreted today, the Sarbanes-Oxley Act authorizes a babysitter to bring a federal case against his employer — a parent who happens to work at the local Walmart — if the parent stops employing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud,” Sotomayor wrote. “And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice.”

She added that “nothing in the text, context or purpose” of the Sarbanes-Oxley Act suggests that Congress wanted to “create this kind of sweeping regime.”

The majority opinion held, though, that the allegations of the plaintiffs in the Lawson case “fall squarely within Congress’ aim.” Wrote Justice Ruth Bader Ginsburg, “Lawson alleges that she was constructively discharged for reporting accounting practices that overstated expenses associated with managing certain Fidelity mutual funds…. By inflating its expenses, and thus understating its profits, [FMR] could potentially increase the fees it would earn from the mutual funds — fees ultimately paid by the shareholders of those funds.”

For his part, Chinn says he’s disappointed in the decision because the case presented an opportunity for the Supreme Court to rein in “the very aggressive interpretations of the whistleblower provision coming out of the Labor Department” under the Obama Administration.

“Advocates for employers, like myself, had hoped the Supreme Court would step in and draw some boundaries for the interpretation of Sarbanes-Oxley in light of where Obama’s [Department of Labor] has gone with it,” he says.

Most notably, in a case called Spinner v. David Landau & Associates that came before the Labor Department’s Administrative Review Board, in 2012 the board broadly interpreted the SOX whistleblower protections to encompass private companies that contract services to public ones. That position contradicted the one that the First Circuit Court of Appeals had already taken in the Lawson v. FMR case.