When reporting fraud, whistleblowers are often put thru the ringer with intense job and livelihood-threatening circumstances. In 2014, the Administrative Review Board (“ARB”) requested amici briefs for the Powers. Union Pacific Railroad Company. The National Whistleblower Center’s sister organization, National Whistleblower Legal Defense and Education Fund, joined the National Employment Lawyers Association, the Truckers Justice Center, and Teamsters for a Democratic Union in filing a brief with the Department of Labor Administrative Review Board (“ARB”).
As Whistleblower Network News notes, the ARB strove to apply “the ‘contributing factor’ test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act (“SOX”) and other whistleblower statutes.” The contributing factor test was created by Congress to lower the standard of evidence for whistleblower cases, thus increasing legal grounds for whistleblowers to file complaints against retaliatory actions committed by their employers. If an employee were to pass the contributing factor test, the responsibility to provide evidence for legitimate reasons for discharging an employee, despite their whistleblowing, would shift to the employer.
The National Whistleblower Legal Defense and Education Fund (“NWLDEF”) brief argues that application of the contributing factor test to an employer’s evidence against a whistleblower “negates clear and overwhelming Congressional intent that the employer’s defenses be weighed by a high standard of proof.” The brief defends that the contributing factor test remain a flexibility offered predominantly, or solely, to the employee victimized by their employer’s retaliatory efforts.
In the opposition, the Chamber of Commerce and the American Trucking Association (“ATA”) submitted an amicus curiae brief as well, arguing for the position of big business.
As per the amici brief, the Administrative Review Board (“ARB”) moved away from the Fordham decision. Unfortunately for whistleblowers, they instead acted under the precedent set in the Palmer v. Canadian National Railway case which led to an outcome in favor of the defendant.