Decisions of the Administrative Review Board
See Case summaries:
- International Assoc. of Machinists and Aerospace Workers, ARB No. 13-086 (ARB Feb. 27, 2015)
Final Decision and Order PDF
Decisions of the Administrative Review Board
See Case summaries:
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. Continue Reading Senators Laud Labor Department’s ‘Burden of Proof’ Interpretation for Whistleblowers
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.” Continue Reading OSHA Finalizes Whistleblower Retaliation Complaint Procedures Under Sarbanes-Oxley
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 Continue Reading Big Win For Whistleblowers At Labor Department
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 Bar Association’s Labor and Employment Section presented this two-day conference.
Mr. Kohn’s presentation covered recent developments in whistleblower law. Topics covered by Mr. Kohn included developments in anti-retaliation laws, whistleblower reward laws and qui tam laws.
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. Continue Reading ARB Decision Promotes Clarity And Uniformity In Whistleblower Cases
The Department of Labor’s Administrative Review Board is designated to issues final agency decisions under a number of laws, many of which include whistleblower provisions.
The following links take you to the most recent decisions of the Office of Administrative Law Judges:
The retirement home whistleblower I blogged about in January has been awarded $20,000 in back pay. On September 24, 2013, a federal court ordered S.E.M. Villa II Inc., a nonprofit corporation that operates S.E.M. Terrace, a retirement facility in Milford, OH, to pay a former resident manager $20,000 in back wages pursuant to a consent judgment and order in a case involving violations of the whistleblower provisions of the Occupational Safety and Health Act of 1970. The complaint alleged that the employer terminated the resident manager for filing a complaint with the Clermont County General Health District stating that S.E.M. Villa II had been ineffective in handling a bedbug infestation at the retirement home.
"OSHA is committed to protecting the rights of America’s workers, who are penalized or terminated for filing complaints seeking to improve the safety and health of their work environment and those affected by it," said Nick A. Walters, OSHA’s regional administrator in Chicago. "A worker should never be at risk of losing their job for reporting health and safety violations and exercising their whistleblower rights."
The manager was dismissed Oct. 5, 2011. Federal Magistrate Judge J. Gregory Wehrman ordered the company to remove all derogatory information related to the dismissal from the worker’s employment record and to comply with the Occupational Safety and Health Act in the future. The company must also post a notice for workers regarding their rights under the act.
On Apr 18, 2013, Rep. George Miller (D-CA) introduced bill to extend whistleblower protections to offshore oil and gas workers. Currently there is no federal law that protects oil and gas workers if they are retaliated against after they blow the whistle on workplace health and safety violations on the Outer Continental Shelf. Workers on oilrigs like the Deepwater Horizon risk losing their jobs if they report dangerous workplace conditions. The workers performing cleanup activities on the Outer Continental Shelf similarly have no protections against employer retaliation for raising health and safety concerns.
The Committee on Education and the Workforce Democrats issued a fact sheet about the Bill. The fact sheet calls for all workers to be protected when they blow the whistle on “concerns about unsafe working conditions” and to grant the workers the “right to stop working if they fear they could be injured or killed.”
“Employees are best situated to discover hazards in the work environment; they are the first line of detection and should be protected when raising concerns,” stated Stephen Kohn, Executive Director of the National Whistleblower Center.
On April 24, Senate Democrats delayed a confirmation vote on Labor Secretary nominee Thomas Perez. Committee Chairman Tom Harkin of Iowa was concerned that Republicans would use a threatened separate hearing as a forum to attack Perez in his absence. Read more.
Senate Republicans have criticized Perez for his involvement in a deal with the city of St. Paul, MN that left a whistleblower with nothing. Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee in coordination with Issa and House Judiciary Chairman Bob Goodlatte, released a joint staff report about how Perez orchestrated a controversial quid pro quo with the city that prevented the Justice Department from recovering hundreds of millions of dollars back to the taxpayers, and left a whistleblower who filed the suit out in the cold.
Here is an excerpt from the joint staff report.
"In early February 2012, Assistant Attorney General Thomas E. Perez made a secret deal behind closed doors with St. Paul, Minnesota, Mayor Christopher Coleman and St. Paul’s outside counsel, David Lillehaug. Perez agreed to commit the Department of Justice to declining intervention in a False Claims Act qui tam complaint filed by whistleblower Fredrick Newell against the City of St. Paul, as well as a second qui tam complaint pending against the City, in exchange for the City’s commitment to withdraw its appeal in Magner v. Gallagher from the Supreme Court, an appeal involving the validity of disparate impact claims under the Fair Housing Act."
According to the joint staff report, this deal cost the U.S. Government the opportunity to recover as much as $200 million.
The Department of Labor’s OSHA Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.
Read the full joint staff report here.