The Skinny on Sarbanes-Oxley Act

By Deborah A. Keary May 16, 2003

Q: Why do I keep hearing about the Sarbanes-Oxley Act? I thought it was about financial services, not about human resource management.

A: The Sarbanes-Oxley Act is a far-reaching piece of legislation signed into law in July 2002. There are two major areas of interest in the act for HR professionals: the whistleblower provisions and the 401(k) plan blackout provisions.

As attorney Paul Salvatore of the New York-based firm Proskauer Rose points out in the SHRM Legal Report on whistleblowing, the Sarbanes-Oxley Act prohibits publicly traded companies from taking any adverse employment action against an employee because of his or her protected whistleblowing activities. Protected are employees who raise allegations of fraud to a federal agency, a member of Congress, any person with supervisory authority over the employee or any other person working for the company who has the authority to investigate, discover or terminate misconduct.

Employees are protected by the act if they “reasonably believe” they know of conduct that involves violation of federal securities laws, the rules or regulations of the Securities and Exchange Commission, or any provision of federal law relating to fraud against shareholders. The employee is protected even if the allegations prove to be incorrect or unsubstantiated. This provision appears to be very broad and very likely to involve HR if employees indicate they have information about fraudulent activities.

The second area of interest to HR practitioners is the 401(k) blackout period notice requirement. A blackout period is any period of more than three consecutive business days during which participants or beneficiaries of a 401(k) plan cannot direct or diversify assets credited to their accounts, or obtain loans or distributions. The act requires plan administrators (often HR or consultants under the direction of HR) to provide notices to affected participants and beneficiaries at least 30 days in advance of covered blackout periods. The notice must be in writing and stated in a way that the average plan participant can understand. If the blackout period prevents at least 50 percent of plan participants from engaging in transactions involving company stock held in their plan accounts, then the act also prohibits directors or executive officers from engaging in trading involving company stock held outside the plan during the blackout period. This applies to any stock acquired in connection with the insider’s services or employment.

Deborah A. Keary, SPHR, is director of the SHRM Information Center.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. National members may reach the Information Center by calling (800) 283-7476 and choosing option #5 or by using the Information Center’s Assistance Request Form found under HR Resources on SHRM Online.

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