Title

SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials

Abstract

Section 806 of the Sarbanes-Oxley Act of 2002 prohibits a publicly-traded company from retaliating against an employee whistleblower who reports suspected corporate fraud to a company supervisor or to a governmental entity. The SOX whistleblower provision is unique in employment discrimination law in that Congress adopted a two-track civil enforcement system for whistleblowers. A complainant must initially pursue a claim in a Department of Labor administrative proceeding. The administrative proceeding involves a trial-like hearing before an administrative law judge and review of the judge's decision by the Administrative Review Board. However, if the Department of Labor does not make a final decision on the claim within 180 days, the complainant may elect to file a de novo case in federal district court against the employer. Although SOX provides for an action to be brought in federal district court if the 180-day deadline is not satisfied, the statute does not specifically state whether a right to jury trial attaches to such an action. This article argues that the statute should be interpreted to imply a jury right for certain SOX actions in federal district court. If the courts do not imply the right, the Seventh Amendment nonetheless guarantees a jury trial in those actions.

Disciplines

Labor and Employment Law

Date of this Version

July 2006