Sarbanes-Oxley Whistleblower Provision Not
Limited to Allegations of Fraud Against
Shareholders
The whistleblower provision of the Sarbanes
Oxley Act, codified in Section 806, is not
limited to allegations of fraud against
shareholders or to conduct that is otherwise
adverse to the interests of investors,
contended the SEC in an amicus
brief submitted to the DOL
Administrative Review Board. There is
nothing in the language of Section 806, said
the SEC, indicating that the listed
categories of laws and regulations to which
an employee’s communication must relate,
such as wire fraud, mail fraud and
violations of SEC regulations, that is
qualified by a requirement that it must be
related to fraud against shareholders or of
a type that would be adverse to investors’
interests. Sylvester v. Parexel
International LLC, ARB Case No. 07-123.
The SEC also said that
the whistleblower should not have to
establish that the protected activity
definitively and specifically relates to a
violation of one or more of the laws listed
in Section 806. Although acknowledging that
the Administrative Review Board and most
courts require that an employee’s
communications definitively and specifically
relate to one or more of the federal laws or
regulations specified in Section 806, the
SEC pointed out that this qualification is
not required. If the requirement should be
adopted, continued the Commission, it should
be interpreted consistent with the remedial
purpose of Section 806.
Although the SEC does
not favor the use of the phrase
“definitively and specifically,” calling it
overly narrow and strict, the Commission
agrees with the courts that a certain degree
of specificity is required. General
inquiries are not enough.
The term “definitively
and specifically” appears to have originated
in a whistleblower case brought under the
Energy Reorganization Act. There, the US
Sixth Circuit Court of Appeals said that to
constitute a protected safety report, an
employee’s acts must implicate safety
definitively and specifically. Am.
Nuclear Res., Inc. v. U.S. Dep’t of Labor,
134 F.3d 1292 (6th Cir. 1998). But the Sixth
Circuit also emphasized that whistleblower
statutes should be interpreted broadly.
According to amicus, the
courts that have adopted the definitively
and specifically requirement in applying
Section 806 have generally interpreted it in
a manner consistent with the whistleblower
provision’s remedial purpose. Section 806
requires only that the employee’s
communication regard conduct which the
employee reasonably believes constitutes a
violation of one of the enumerated federal
laws or SEC regulations. The SEC does not
believe that the qualification that the
communication must relate definitively and
specifically to one of those laws should be
added.
Although the courts
generally have accepted the qualification,
said the SEC, they have given it an
appropriate interpretation consistent with
the remedial purposes of Section 806. The
SEC agrees with courts that have focused on
the degree to which the communication can be
reasonably understood by the employer to
implicate a possible violation of one of the
enumerated laws. As the Fourth Circuit
explained in Welch v. Chao, 536 F.3d
269, 275 (4th Cir. 2008), this requirement
ensures that an employee’s communications to
his or her employer are factually specific
and identify the specific conduct that the
employee believes to be illegal. Beyond
that, the SEC does not believe that the
employee’s communication needs to include a
detailed analysis of the alleged violation
in order to be protected activity.