Administrative Review Board

The Administrative Review Board issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection.  The below list includes decisions of the Administrative Review Board from January to April 2016 as reported in the USDOL/OALJ Reporter:

April 2016

  • Gupta v. Compunnel Software Group, Inc., ARB No. 16-056, ALJ No. 2011-LCA-45 (ARB Apr. 29, 2016)
    Final Decision and Order PDF
  • Bohanon v. Grand Trunk Western Railroad Co., ARB No. 16-048, ALJ No. 2014-FRS-3 (ARB Apr. 27, 2016)
    Final Decision and Order Denying Motion to File Petition for Review, After Time for the Filing Has Expired PDF
  • Graves v. MV Transportation, Inc., ARB No. 14-098, ALJ Nos. 2014-NTS-1 and 2 (ARB Apr. 27, 2016)
    Order Approving Settlement and Dismissing Complaint PDF
  • OFCCP, USDOL v. Bank of America, ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016)
    Final Decision and Order PDF


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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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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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The Department’s Top Judges will Decide the “Burden of Proof” Whistleblower Must Meet to Prevail in Sarbanes-Oxley and Dodd-Frank Whistleblower Cases

The Department of Labor Administrative Review Board (ARB) will hold oral arguments in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034 on Wednesday, January 14 at 2pm.  This case will decide the burden of proof that whistleblowers must meet in order to prevail in retaliation cases filed under the key corporate whistleblower laws, including the Sarbanes-Oxley Act, the Dodd-Frank Act’s Consumer Safety laws, transportation safety laws, the Atomic Energy Act and the Affordable Care Act, among others.

National Whistleblower Center Executive Director Stephen M. Kohn will be one of the attorneys arguing the case on behalf of the whistleblowers.  Kohn called the Powers case “monumental.”  The case is being heard en banc by all of the top Labor Department appeals court judges who have the authority to decide whistleblower cases. 
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Yesterday, the National Whistleblower Center joined other groups in filing an amici curiae brief with the Department of Labor Administrative Review Board (ARB) in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034.  Joining the NWC as amici are the National Employment Lawyers Association, the Truckers Justice Center and Teamsters for a Democratic Union.

The ARB called for amici to file briefs in the Powers case to consider 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.  The full ARB is considering whether an earlier 2-to-1 ARB panel decision in Fordham v. Fannie Mae, ARB No. 12-061 was correctly decided.  In Fordham, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed employer defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.  
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