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 Whistleblower Center, and Government Accountability Project Legal Director Tom Devine. Attorney James Ferguson also argued on behalf of Mr. Powers, explaining the factual background to the case and why the burden of proof would have a major impact in the case.
The Chamber of Commerce and the American Trucking Association, among others, argued against the whistleblower, aggressively campaigning for high burdens of proof for whistleblowers.
In a surprising move, the Solicitor of Labor also argued against the whistleblower.
According to Kohn: “This is a big win for whistleblowers. Congress changed the burdens of proof in whistleblower cases, intending to make it easier for whistleblowers to win their cases. Unfortunately, for years the Labor Department failed to implement these new standards. This case marks a new beginning for whistleblowers that file corporate retaliation cases.
The legal standard for proving a whistleblower claim is now far easier to meet then under other employment laws, such as race, sex, and age discrimination cases. Instead of having to prove that an employee’s protected disclosure was the “but for” reason for termination, whistleblowers now only have to show that the protected activity was a “contributing factor” to an adverse action, in other words, just one of potentially numerous factors, and not even the primary factor.
“Congress recognized the incredible benefits obtained by society by encouraging employees to blow the whistle on fraud. They also understood that the law was stacked against the whistleblower that usually faced high-powered corporate lawyers, with unlimited budgets. The ruling helps to even the playing field and give whistleblowers a fair shot at winning their cases”, Kohn added.
Kohn has litigated corporate whistleblower cases since 1984, and is the author of The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press, 3rd. ed. 2013).
- Powers v. Union Pacific Railroad Company, ARB Case No. 13-034
- NWC Amicus brief in Powers v. Union Pacific Railroad Company, ARB Case No. 13-03
- Amicus Brief – Chamber of Commerce and American Trucking
- Department of Labor to Hold Oral Arguments on Key Corporate Whistleblower Case
- NWC Joins Amicus in SOX Whistleblower Retaliation Case