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Whistleblower Victorious Before Department Of Labor Administrative Review Board

By Patricia Chen posted 04-09-2015 05:50 PM


The U.S. Department of Labor’s Administrative Review Board (ARB), sitting en banc, issued a 3-2 decision in favor of Complainant Robert Powers on March 20, 2015 in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034, ALJ Case No. 2010-FRS-030, holding that a lower burden of proof applied to employee claims brought under corporate whistleblower statutes. Mr. Powers was represented at the hearing on January 14, 2015 by NELA member Stephen M. Kohn of Kohn, Kohn & Colapinto, LLP (Washington, DC). NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center, and Teamsters for a Democratic Union in filing an amicus brief in support of Mr. Powers. NELA member Jason M. Zuckerman of Zuckerman Law (Washington, DC), who authored the brief also appeared at the hearing. Not surprisingly, the U.S. Chamber of Commerce, joined by American Truckers Associations, Inc., submitted an amicus brief endorsing higher burdens of proof for whistleblowers. The U.S. Solicitor of Labor, taking an unanticipated position, argued against the whistleblower. Mr. Kohn characterized the decision as “a big win for whistleblowers.”

The case on appeal presented the issue of whether the ARB’s majority opinion in Fordham v. Fannie Mae applied the correct standard in articulating a contributing factor causation test for retaliation claims brought under various whistleblower laws. See Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (Oct. 9, 2014). Previously, the standard of proof that an employee had to meet was to show that the protected activity engaged in was the “but for” cause of an adverse employment action. Under the ARB’s en banc decision in Powers an employee now needs only to prove that the protected activity was a “contributing factor” leading to an adverse employment action. This requires the employee to demonstrate that the protected activity was one of potentially many other factors that led to an adverse employment action as opposed to it being the only factor. The ARB also further clarified the parameters of the contributing factor causation test.  The ARB stated that ‘“Powers need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action’ to prove contributing factor… he has no obligation under the Act to rebut evidence of nondiscriminatory motive….”

Mr. Kohn contended that the victory was significant and would benefit employees in whistleblower cases to come. He said that “this case marks a new beginning for whistleblowers that file corporate retaliation cases.”

NELA member Jason Zuckerman, Zuckerman Law, Washington D.C., authored the amicus brief.

#Whistleblower #DOL #Amicus