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It’s nearly impossible to discuss modern whistleblowing in the U.S. without mentioning the broad effect of the federal Sarbanes-Oxley Act (SOX) and the enormous accounting scandals of the late 20th and early 21st centuries. Before SOX, whistleblowing protection was intertwined with what most human resources specialists currently would think of as protection against employer retaliation. Under the Occupational Safety and Health Act(OSH Act) for example, it was illegal for employers to retaliate against employees who “blew the whistle” about a safety hazard. Also, laws like Title VII of the Civil Rights Act of 1964 (Title VII) protected an employee who provided evidence of discrimination against her employer. The SOX was enacted in 2002 as Congress’ response to corporate scandals at Enron and WorldCom. Most of the Act focuses on financial reporting and internal control requirements for publicly traded companies, but Congress also included provisions to protect insiders who report questionable accounting practices. The enactment of SOX opened the way for a deluge of filings to the U.S. Department of Labor (DOL) from individuals claiming that they suffered retaliation for reporting financial hijinks. Some analysts predict that the whistleblower law’s effect on 21st century business practices will rival the effect that the civil rights laws had in the 20th century. The good news for private employers is that the SOX applies only to public companies. Of course, private employers are usually subject to other laws that prohibit retaliation for engaging in lawful conduct, such as the prohibitions against retaliation for filing claims of race, sex, or other protected-class discrimination or exercising Family and Medical Leave Act (FMLA) rights. Private employers also might find themselves in hot water over a state whistleblower law. Whistleblower retaliation complaints are relatively easy to initiate under the SOX. The DOL has delegated enforcement...
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