The U.S. Department of Labor Administrative Review Board ("Board") recently held, in Johnson v. Siemens Building Techs., Inc. No. 08-032, that the whistleblower provisions of the Sarbanes-Oxley Act of 2002 ("SOX") extend coverage to a non-public subsidiary whose financial information is included in the consolidated financial statements of its publicly traded parent. Section 806 of SOX provides whistleblower protection for employees of publicly traded companies, which used to be defined as a "company with a class of securities registered under section 12 of the Securities Exchange Act of 1934...., or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934...." The Board had previously held, in 2006, that a non-public subsidiary of a publicly traded parent could be subject to the prohibitions of Section 806 under a common law agency theory. Since that decision, however, the Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law and amended Section 806 of SOX by including coverage for "any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company." Citing the divided views within the Department of Labor and among federal courts on this issue, the Board concluded that the inclusion of subsidiaries within Section 806 was consistent with the protections Congress had envisioned for whistleblowers under SOX. Notably, the Board commented that even absent the Dodd-Frank amendment to Section 806, it would have still reached the same conclusion.
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