Administrative Review Board

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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Today, attorney Stephen Kohn (Executive Director of the National Whistleblowers Center) and I are filing an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB). The brief urges the ARB to affirm a decision of an Administrative Law Judge (ALJ) in favor of Christopher Bala, a signalman for the PATH railway that

The U.S. Department of Labor, Administrative Review Board (ARB) issued a precedent setting decision last week holding that the Sarbanes-Oxley Act (SOX) does protect the employees of contractors to publicly traded companies.  The decision is particularly noteworthy as the ARB rejected the First Circuit decision in Lawson v. FMR, LLC, Case No. 10-2240 (1st

The U.S. Department of Labor’s Administrative Review Board (ARB) has issued a letter announcing the appointment of two new judges, and a new policy on briefing schedules. The two new judges are Joanne Royce and Luis Corchado. Royce previously worked for the Government Accountability Project (GAP) and a House committee. Corchado was Assistant Director of

The Fourth Circuit U.S. Court of Appeals has affirmed an administrative appeal decision that leaves corporate whistleblower Stacy Platone out in the cold.  The December 3, 2008, opinion affirms a decision of the U.S. Department of Labor’s Administrative Review Board that took away Platone’s order from an Administrative Law Judge.  The Court held that under the Sarbanes-Oxley (SOX) employee protection, whistleblowers have to be specific about their allegations of fraud to be protected from retaliation.

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