On August 3, 2016, NELA, joined by the Truckers Justice Center, Teamsters for a Democratic Union, and General Drivers, Warehousemen & Helpers Local No. 89, filed an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB) in support of whistleblower complainant Kenneth Palmer in Palmer v. Canadian National Railway/Illinois Central Railroad Company.
A unique burden-shifting framework applies to a number of statutes enacted to protect workplace whistleblowers. In cases arising under these laws, a complainant has the burden to demonstrate by a preponderance of the evidence that his actual or perceived protected activity was a contributing factor in his employer’s decision to take adverse action against him. Once a complainant satisfies this burden, the employer may prevail only by demonstrating by clear and convincing evidence that the employer would have taken the same action in the absence of the complainant’s actual or perceived protected activity.
In its order setting Palmer for en banc review, the ARB requested supplemental briefs from the parties and interested amici curiae addressing two questions: 1) In deciding, after an evidentiary hearing, if a complainant has proven by a preponderance of the evidence that his protected activity was a “contributing factor” in the adverse action taken against him, is the Administrative Law Judge (ALJ) required to disregard the evidence, if any, the respondent offers to show that the protected activity did not contribute to the adverse action? 2) If the ALJ is not required to discard all such evidence, are there any limitations on the types of evidence the ALJ may consider?
The amicus brief argues that the plain meaning of the applicable statutory text, the legislative history surrounding the adoption of the text, and the text’s purpose as part of a broader regulatory scheme designed to protect workplace whistleblowers from retaliation preclude an ALJ from considering at the “contributing factor” stage the respondent’s evidence that the protected activity played no role in the adverse action. To rule otherwise would allow respondents to circumvent the evidentiary framework by having evidence that should be evaluated under the more demanding “clear and convincing” standard reviewed under the lower “preponderance” standard, and would in effect raise the complainant’s initial burden beyond “contributing factor,” while also rendering superfluous the “clear and convincing” prong of the statute.
The amicus brief was authored by NELA members Dallas Hammer and Jason Zuckerman (both of Zuckerman Law in Washington, DC) and is available for download from the Amicus Library on The NELA Exchange.