WASHINGTON – 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, 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 Fordham v. Fannie Mae and Powers v. Union Pacific Railroad are consistent with the intent of Congress.
“A thorough and careful reading of the relevant legislative history amply demonstrates that Congress intended this bifurcated analysis in whistleblower cases to address patterns of retaliation in various industries and agencies and ultimately to ‘facilitate relief’ for whistleblowers,” the senators wrote.
Cosigners of the letter include senators Chuck Grassley of Iowa, Ron Wyden of Oregon, Thom Tillis of North Carolina, Mark Kirk of Illinois, Tammy Baldwin of Wisconsin and Claire McCaskill of Missouri.
Text of the letter is below. A signed copy is available here.
April 14, 2015
VIA ELECTRONIC TRANSMISSION
The Honorable Thomas Perez
Secretary of Labor
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210
Dear Secretary Perez:
We write in support of the Department of Labor Administrative Review Board’s (ARB) recent decisions in Fordham v. Fannie Mae, ARB No. 12-061 (Oct. 9, 2014) and Powers v. Union Pacific Railroad, ARB No. 13-034 (Mar. 20, 2105), clarifying the statutory burdens of proof for parties in whistleblower cases.
As the ARB recognized in Fordham and reaffirmed in Powers, whistleblower statutes and their implementing regulations establish unique burdens for whistleblowers claiming retaliation and their respondent employers. This distinction has important implications for the types of evidence that may be offered and considered at each stage of proof.
A whistleblower claiming retaliation first must show, under a preponderance of the evidence standard, that any protected activities in which they engaged played a role in the retaliation they experienced. A respondent then has a heavier “burden of proving by ‘clear and convincing evidence’ that it would have taken [adverse] personnel action for legitimate, non-retaliatory reasons had there been no protected activity.” It makes no sense to weigh a respondent employer’s evidence of non-retaliatory reasons for an adverse action in the first stage under a lower burden than that intended by Congress. As the ARB in Fordham correctly noted,
To afford an employer the opportunity of defeating a complainant’s proof of a ‘contributing factor’ causation by proof at this stage of legitimate, non-retaliatory reasons for its action by a preponderance of the evidence would render the statutory requirement of proof of the employer’s statutorily prescribed affirmative defense by ‘clear and convincing evidence’ meaningless.
As the ARB further notes, this clear distinction also appears in the ERA and Whistleblower Protection Act, which serve as a model for the standards of proof at issue in Fordham and Powers. A thorough and careful reading of the relevant legislative history amply demonstrates that Congress intended this bifurcated analysis in whistleblower cases to address patterns of retaliation in various industries and agencies and ultimately to “facilitate relief” for whistleblowers.
Historically, whistleblowers who pursue claims of retaliation for disclosing waste, fraud, and abuse are severely disadvantaged. Whistleblowers frequently lack access to employer information that would elucidate employer motivations and decision making processes in cases of adverse personnel actions. Courts and the ARB have long recognized that whistleblowers’ burden to demonstrate their protected activities contributed to such an action does not include an obligation to offer evidence that their employer had a “retaliatory motive.” Neither should it include an obligation to refute a “subjective non-retaliatory motive.” The ARB’s recent decisions are thus in line with congressional intent to level the playing field for whistleblowers in bringing retaliation claims.
We commend the ARB for its commitment to a fair and accurate interpretation of the federal whistleblower provisions.
Sincerely,
cc: Paul M. Igasaki
Chair
Administrative Review Board
E. Cooper Brown
Vice Chair
Administrative Review Board
Joanne Royce
Administrative Review Board
Luis A. Corchado
Administrative Review Board
Lisa Wilson Edwards
Administrative Review Board
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