Difference between revisions of "Whistleblower Protection Laws"

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The Criminal Antitrust Anti-Retaliation Act prohibits a wide range of retaliatory acts, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment.
The Criminal Antitrust Anti-Retaliation Act prohibits a wide range of retaliatory acts, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment.


The catch-all category of retaliation (“in any other manner” discriminating against a whistleblower) includes non-tangible employment actions, such as “outing” a whistleblower in a manner that forces the whistleblower to suffer alienation and isolation from work colleagues.  See Menendez v. Halliburton, Inc., ARB Nos. 09-002, -003, ALJ No. 2007- SOX- 5 (ARB Sept 13, 2011).  An employment action can constitute actionable retaliation if it “would deter a reasonable employee from engaging in protected activity.”  Id. at 20.
The catch-all category of retaliation (“in any other manner” discriminating against a whistleblower) includes non-tangible employment actions, such as “outing” a whistleblower in a manner that forces the whistleblower to suffer alienation and isolation from work colleagues.  See ''Menendez v. Halliburton, Inc.'', ARB Nos. 09-002, -003, ALJ No. 2007- SOX- 5 (ARB Sept 13, 2011).  An employment action can constitute actionable retaliation if it “would deter a reasonable employee from engaging in protected activity.”  ''Id.'' at 20.


What is the burden of proof for an antitrust whistleblower in an antitrust whistleblower retaliation case?
=='''Burden of Proof for an Antitrust Whistleblower'''==
The Criminal Antitrust Anti-Retaliation Act applies the causation standard and burden-shifting framework set forth in the AIR21 Whistleblower Protection Law.  Under that framework, the whistleblower prevails by proving that their protected whistleblowing was a contributing factor in the unfavorable personnel action taken by their employer.  The Department of Labor Administrative Review Board has emphasized that the standard is low and “broad and forgiving”; protected activity need only play some role, and even an “[in]significant” or “[in]substantial” role suffices. Palmer v. Canadian Nat’l R.R., ARB No. 16-035, ALJ No. 2014-FRS-154, at 53 (ARB Sept. 30, 2016) (emphasis in original).  Examples of circumstantial evidence that can establish “contributing factor” causation include:
The Criminal Antitrust Anti-Retaliation Act applies the causation standard and burden-shifting framework set forth in the [https://www.law.cornell.edu/uscode/text/49/42121 AIR21 Whistleblower Protection Law].  Under that framework, the whistleblower prevails by proving that their protected whistleblowing was a contributing factor in the unfavorable personnel action taken by their employer.  The Department of Labor Administrative Review Board has emphasized that the standard is low and “broad and forgiving”; protected activity need only play some role, and even an “[in]significant” or “[in]substantial” role suffices. ''Palmer v. Canadian Nat’l R.R.'', ARB No. 16-035, ALJ No. 2014-FRS-154, at 53 (ARB Sept. 30, 2016) (emphasis in original).  Examples of circumstantial evidence that can establish “contributing factor” causation include:
*temporal proximity;
*the falsity of an employer’s explanation for the adverse action taken;
*inconsistent application of an employer’s policies;
*an employer’s shifting explanations for its actions;
*animus or antagonism toward the whistleblower’s protected activity; and
*a change in the employer’s attitude toward the whistleblower after they engage in protected activity.


temporal proximity;
the falsity of an employer’s explanation for the adverse action taken;
inconsistent application of an employer’s policies;
an employer’s shifting explanations for its actions;
animus or antagonism toward the whistleblower’s protected activity; and
a change in the employer’s attitude toward the whistleblower after they engage in protected activity.
Once the whistleblower proves that their protected conduct was a contributing factor in the adverse action, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the whistleblower engaging in protected conduct.
Once the whistleblower proves that their protected conduct was a contributing factor in the adverse action, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the whistleblower engaging in protected conduct.


What remedies or damages can a whistleblower recover in an antitrust whistleblower retaliation case?
=='''Remedies or Damages in an Antitrust Whistleblower Retaliation Case'''==
A prevailing antitrust whistleblower is entitled to make-whole relief, which includes:
A prevailing antitrust whistleblower is entitled to make-whole relief, which includes:
*reinstatement with the same seniority status that the whistleblower would have had, but for the discrimination;
back pay, with interest; and
*compensation for any special damages sustained as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorneys’ fees.


reinstatement with the same seniority status that the whistleblower would have had, but for the discrimination;
=='''Deadline or Statute of Limitations to File an Antitrust Whistleblower Retaliation Case'''==
back pay, with interest; and
compensation for any special damages sustained as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorneys’ fees.
What is the deadline or statute of limitations to file an antitrust whistleblower retaliation case?
The statute of limitations for an antitrust whistleblower retaliation claim is 180 days from the date that the employee was first informed of the adverse action.
The statute of limitations for an antitrust whistleblower retaliation claim is 180 days from the date that the employee was first informed of the adverse action.


Where are antitrust whistleblower retaliation cases adjudicated?
=='''Antitrust Whistleblower Retaliation Case Adjudication'''==
An antitrust whistleblower retaliation case must be filed initially with OSHA, which will investigate the claim.  If OSHA determines that there is reasonable cause to believe that a violation occurred, OSHA can order relief, including reinstatement of the whistleblower.
An antitrust whistleblower retaliation case must be filed initially with OSHA, which will investigate the claim.  If OSHA determines that there is [https://www.zuckermanlaw.com/sp_faq/reasonable-cause-standard-osha-whistleblower-investigation/ reasonable cause] to believe that a violation occurred, OSHA can order relief, including reinstatement of the whistleblower.


Either party can appeal OSHA’s determination by requesting a de novo hearing before the DOL Office of Administrative Law Judges (OALJ), but an employer’s objection to an order of preliminary relief will not stay the order of reinstatement.  Once an antitrust retaliation claim has been pending before the DOL for more than 180 days, the whistleblower can remove the claim to federal court.  
Either party can appeal OSHA’s determination by requesting a de novo hearing before the DOL Office of Administrative Law Judges (OALJ), but an employer’s objection to an order of preliminary relief will not stay the order of reinstatement.  Once an antitrust retaliation claim has been pending before the DOL for more than 180 days, the whistleblower can remove the claim to federal court.  


What is the purpose of the Criminal Antitrust Anti-Retaliation Act?
=='''Purpose of the Criminal Antitrust Anti-Retaliation Act'''==
Senators Grassley and Leahy, the sponsors of the Criminal Antitrust Anti-Retaliation Act, offered the following explanation of the purpose of the Act:
Senators Grassley and Leahy, the sponsors of the Criminal Antitrust Anti-Retaliation Act, offered the following explanation of the purpose of the Act:


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“Our country has a proud history of protecting whistleblowers who expose wrongdoing . . .  In an era where dominant corporations aggressively seek to expand their profits and quash competitors, our laws should protect whistleblowers who take significant risks to report criminal antitrust violations like price-fixing that undermine free and fair competition . . . ,” Leahy said.
“Our country has a proud history of protecting whistleblowers who expose wrongdoing . . .  In an era where dominant corporations aggressively seek to expand their profits and quash competitors, our laws should protect whistleblowers who take significant risks to report criminal antitrust violations like price-fixing that undermine free and fair competition . . . ,” Leahy said.


The Criminal Antitrust Anti-Retaliation Act implements a recommendation made in a July 2011 GAO Report about criminal cartel enforcement.
The Criminal Antitrust Anti-Retaliation Act implements a recommendation made in a July 2011 [https://www.gao.gov/assets/gao-11-619.pdf GAO Report about criminal cartel enforcement].