A bipartisan group of senators commended the Department of Labor, Administrative Review Board’s (ARB) interpretation of federal whistleblower protections provisions, clarifying the statutory burdens of proof in whistleblower cases. In two recent decisions, Fordham v. Fannie Mae, ARB No. 12-061 (Oct. 9, 2014) and Powers v. Union Pacific Railroad, ARB No. 13-034 (Mar. 20, 2105), the ARB found that employees should be allowed to have a fair chance to make their case before having to rebut an employer’s rationale for taking action against the employee.

In a letter to the Labor Secretary Thomas Perez, the senators wrote that the ARB’s interpretation of the requisite standards of proof for both the employee and the employer in both decisions are consistent with the intent of Congress.  
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On March 6, 2015, The Occupational Safety and Health Administration published a final rule finalizing procedures for handling whistleblower retaliation complaints filed under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX).

Sox Act contains significant protections for corporate whistleblowers. It covers employees who report fraudulent activities and violations of Securities Exchange Commission rules that can harm investors in publicly traded companies. Given its diverse civil, criminal and administrative provisions, the statute may be considered, over time, one of the most important whistleblower protection laws.

“Silencing workers who try to do the right thing is unacceptable,” said Assistant Secretary of Occupational Safety and Health Dr. David Michaels. “This final rule safeguards investors by protecting whistleblowers who shine a light on illegal or fraudulent conduct that otherwise may go uncorrected.”
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Washington, D.C. March 23, 2015. The U.S. Department of Labor’s top whistleblower appeals board issued a 3-2 ruling setting forth the burdens of proof in corporate whistleblower cases.  The decision, issued on Friday, March 20th by the DOL Administrative Review Board (Board) in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034, establishes an employee-friendly standard, making it easier for whistleblowers to prevail under numerous corporate whistleblower laws, including the Sarbanes-Oxley Act, Energy Reorganization Act, and the Consumer Safety Act.

The ruling comes after a hotly contested two-hour oral argument before the Board where leaders of the corporate community and whistleblower advocates fought it out.  Stephen Kohn, partner at Kohn, Kohn & Colapinto, LLP, argued the burden of proof issue on behalf of the whistleblower, Mr. Robert Powers, the oral argument held before the Board on January 14, 2015.  Supporting Powers were numerous representatives from the whistleblower community, including Jason Zuckerman, who argued on behalf of advocacy groups, such as the National  
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Stephen M. Kohn, executive director of the National Whistleblower Center gave a presentation at the 6th biennial Labor and Employment Law Conference, March 12, in New Orleans.

During this conference, leading experts in labor and employment law made presentations on recent developments in all areas of labor and employment law. The Federal

In a long-overdue decision issued on October 9, 2014, the Department of Labor Administrative Review Board (ARB) finally clarified the standard of proof for employees to establish the “contributing factor” test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act  (SOX) and other whistleblower statutes.  In a 2-to-1 panel decision in Fordham v. Fannie Mae, ARB No. 12-061, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed Fannie Mae’s defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.

The majority opinion noted that Congress had created the “contributing factor” test to lower the standard of proof needed in whistleblower cases, and that once a “contributing factor” is shown the burden of proof shifts to the employer to prove by “clear and convincing” evidence that it would have taken the same action in the absence of the employee’s whistleblowing.
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