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These remedies are substantially similar to the relief authorized in the anti-retaliation provision of the False Claims Act. Neither statute authorizes an award of punitive damages, but double back pay and uncapped special damages can be a potent remedy.
These remedies are substantially similar to the relief authorized in the anti-retaliation provision of the False Claims Act. Neither statute authorizes an award of punitive damages, but double back pay and uncapped special damages can be a potent remedy.
=='''Deadline or Statute of Limitations to File a TFA Whistleblower Retaliation Case'''==
The statute of limitations for a TFA whistleblower retaliation claim is 180 days from the date that the employee is first informed of the adverse action.
=='''Tax Fraud Whistleblower Retaliation Case Adjudication'''==
The claim 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.
Either party can appeal OSHA’s determination by requesting a de novo hearing before the DOL Office of Administrative Law Judge (OALJ), but an employer’s objection to an order of preliminary relief will not stay the order of reinstatement. Once a TFA retaliation claim has been pending before the DOL for more than 180 days, the whistleblower can remove the claim to federal court and try the case before a jury.
=='''Employer Mandatory Arbitration of Employment Disputes'''==
TFA retaliation claims are exempt from mandatory arbitration.
=='''Awards for Reporting Tax Fraud to the IRS'''==
Under 26 USC § 7623(b), the IRS is required to issue an award to tax whistleblowers of 15% to 30% of proceeds collected from tax fraud or tax underpayments if:
*the whistleblower provides a tip that the IRS decides to take action on (a whistleblower cannot force the IRS to act on a tip);
*the amount in dispute (the tax underpayment, including interest and penalties) exceeds $2 million (if the taxpayer is an individual, his or her gross income must exceed $200,000 for at least one of the tax years in question); and
*the IRS collects tax underpayments resulting from the action (including any related actions).
During fiscal year 2018, the IRS awarded $312M to tax fraud whistleblowers, and whistleblowers enabled the IRS to recover $1,441,255,859.
=='''Taxpayer First Act Whistleblower Protection Law'''==
26 U.S.C. § 7623(d)
CIVIL ACTION TO PROTECT AGAINST RETALIATION CASES
(1) ANTI-RETALIATION WHISTLEBLOWER PROTECTION FOR EMPLOYEES. No employer, or any officer, employee, contractor, subcontractor, or agent of such employer, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment (including through an act in the ordinary course of such employee’s duties) in reprisal for any lawful act done by the employee—
(A) to provide information, cause information to be provided, or otherwise assist in an investigation regarding underpayment of tax or any conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud, when the information or assistance is provided to the Internal Revenue Service, the Secretary of the Treasury, the Treasury Inspector General for Tax Administration, the Comptroller General of the United States, the Department of Justice, the United States Congress, a person with supervisory authority over the employee, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct, or
(B) to testify, participate in, or otherwise assist in any administrative or judicial action taken by the Internal Revenue Service relating to an alleged underpayment of tax or any violation of the internal revenue laws or any provision of Federal law relating to tax fraud.
(2) ENFORCEMENT ACTION.
(A) IN GENERAL. A person who alleges discharge or other reprisal by any person in violation of paragraph (1) may seek relief under paragraph (3) by
(i) filing a complaint with the Secretary of Labor, or
(ii) if the Secretary of Labor has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
(B) PROCEDURE. —
(i) IN GENERAL. An action under subparagraph (A)(i) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.
(ii) EXCEPTION. Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the employer.
(iii) BURDENS OF PROOF. An action brought under subparagraph (A)(ii) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code, except that in applying such section—
(I) ‘behavior described in paragraph (1)’ shall be substituted for ‘behavior described in paragraphs (1) through (4) of subsection (a)’ each place it appears in paragraph (2)(B) thereof, and ”(II) ‘a violation of paragraph (1)’ shall be substituted for ‘a violation of subsection (a)’ each place it appears.
(iv) STATUTE OF LIMITATIONS. A complaint under subparagraph (A)(i) hall be filed not later than 180 days after the date on which the violation occurs.
(v) JURY TRIAL. A party to an action brought under subparagraph (A)(ii) shall be entitled to trial by jury.
(3) REMEDIES.—
(A) IN GENERAL. An employee prevailing in any action under paragraph (2)(A) shall be entitled to all relief necessary to make the employee whole.
(B)COMPENSATORY DAMAGES.—Relief for any action under subparagraph (A) shall include—
(i) reinstatement with the same seniority status that the employee would have had, but for the reprisal,
(ii) the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest, and
(iii) compensation for any special damages sustained as a result of the reprisal, including litigation costs, expert witness fees, and reasonable attorney fees.
(4) RIGHTS RETAINED BY EMPLOYEE. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.
(5) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.
(A) WAIVER OF RIGHTS AND REMEDIES. The rights and remedies provided for in this subsection may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.
(B) PREDISPUTE ARBITRATION AGREEMENTS. No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this subsection.
=='''Whistleblower Protection Act'''==
The Whistleblower Protection Act protects federal employees, including Veterans Affairs whistleblowers, against retaliation for making any disclosure that a federal employee reasonably believes evidences:
*a violation of any law, rule, or regulation;
*gross mismanagement;
*a gross waste of funds;
*an abuse of authority;
*a substantial and specific danger to public health or safety; or
*censorship related to research, analysis, or technical information that cause, or will cause, gross government waste or mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law.
The Whistleblower Protection Enhancement Act of 2012 clarifies that a disclosure does not lose protection where:
*the disclosure was made to a person, including a supervisor, who participated in the wrongdoing disclosed;
*the disclosure revealed information that had previously been disclosed;
*of the employee or applicant’s motive for making the disclosure;
*the disclosure was made while the employee was off duty;
*of the amount of time which has passed since the occurrence of the events described in the disclosure; or
*the disclosure was made during the employee’s normal course of duties, providing the employee is able to show that the personnel action was taken in reprisal for the disclosure.
=='''Prohibited Forms of Whistleblower Retaliation (Personnel Actions)'''==
The WPA prohibits the taking of a broad range of personnel actions in retaliation for whistleblowing, including removals, demotions, reassignments, pay decisions, as well as significant changes in duties, responsibilities, or working conditions. In addition, the Whistleblower Protection Enhancement Act prohibits an agency from implementing or enforcing any nondisclosure policy, form, or agreement that fails to notify an employee that the agreement does not supersede, conflict with, or otherwise alter whistleblower rights and protections.
=='''Proving Whistleblower Retaliation Under the Whistleblower Protection Act'''==
The burden of proof under the Whistleblower Protection Act is very favorable to whistleblowers. An employee can prevail by showing that protected whistleblowing was a contributing factor in the personnel action. The agency can avoid liability only if proves by clear and convincing evidence that it would have taken the same personnel action in the absence of the employee’s protected whistleblowing.
To determine whether an agency has met its burden via clear and convincing evidence, judges evaluate:
*the strength of the agency’s evidence in support of its personnel action;
*the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and
*any evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers.
=='''Damages or Relief for Federal Employee Whistleblowers'''==
A prevailing whistleblower can recover lost wages, attorney’s fees, equitable relief (e.g., reinstatement, rescinding a suspension, modifying a performance evaluation, etc.) and uncapped compensatory damages (emotional distress damages). In addition, a whistleblower can recover fees, costs, or damages reasonably incurred due to a retaliatory investigation. Retaliatory investigations can take many forms, such as unwarranted referrals for criminal or civil investigations or extraordinary reviews of time and attendance records.
=='''Filing a Whistleblower Protection Act Complaint'''==
Whistleblower retaliation is a prohibited personnel practice under the Civil Service Reform Act. A complaint alleging a prohibited personnel practice can be filed at the U.S. Office of Special Counsel. If you have suffered retaliation for protected whistleblowing that is also appealable to the Merit System Protection Board, you may elect to pursue a remedy through one of three remedial processes:
*an appeal to the Board under 5 U.S.C. § 7701;
*a grievance under a collective bargaining agreement; or
*a complaint filed with OSC, which can be followed by an Individual Right of Action appeal filed with the Board.
This election of remedies does not affect the right to pursue an EEO complaint, i.e., an employee can pursue both an EEO complaint and an OSC complaint simultaneously.
=='''Energy Reorganization Act'''==
Section 211 of the Energy Reorganization Act (ERA) protects employees who disclose concerns about nuclear safety or a violation a Nuclear Regulatory Commission (NRC) rule or regulation.
=='''Protected Nuclear Safety Whistleblowing'''==
The ERA whistleblower anti-retaliation provision protects employees in the nuclear industry for engaging in protected whistleblowing, including:
*Raising concerns about nuclear safety;
*Refusing to engage in activities prohibited under either the ERA or AEA provided the employee has identified the alleged illegality;
*Testifying before Congress or at any Federal or State proceeding regarding any provision of the ERA or the AEA;
*Commencing or causing to be commenced a proceeding under or the enforcement of the ERA or AEA, or testifying in any such proceeding; or
*Assisting or participating in any other action to promote nuclear safety.
The ERA protects disclosures to an employer and disclosures to the NRC. Click here to report a safety or security concern directly to the NRC.
=='''Prohibited Retaliation Against Nuclear Safety Whistleblowers'''==
Section 211 of the ERA prohibits a broad range of retaliatory actions, including termination, harassment, suspension, demotion, blacklisting/refusal to hire, and any act that would dissuade a reasonable person from engaging further protected activity.
Recently, OSHA awarded $260,000 to a nuclear whistleblower who was wrongfully terminated after reporting safety concerns concerning a construction project at the Wolf Creek Generating Station, including breaches of minimum soil coverage requirements for emergency service water piping.
=='''Proving ERA Whistleblower Retaliation'''==
To prevail on an ERA whistleblower complaint, a complainant must prove by a preponderance of the evidence that the complainant’s protected whistleblowing was a contributing factor in the adverse action. A common source of indirect evidence of retaliation is “temporal proximity” between the protected whistleblowing and the adverse action. The closer the temporal proximity, the greater the causal connection there is to the alleged retaliation.
If the complainant’s protected activity was a contributing factor in the adverse action, the employer may avoid liability only if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected whistleblowing. This is known as the “same decision defense.” To assess whether an employer has proven that defense by clear and convincing evidence, DOL evaluates the following factors:
*whether the employer’s evidence meets the plain meaning of “clear” and “convincing”;
*whether the employer’s evidence indicates subjectively that the employer “would have” taken the same adverse action; and
*whether facts that the employer relies on would change in the “absence of” the protected activity.”
=='''Remedies for Prevailing Nuclear Safety Whistleblowers'''==
A prevailing nuclear whistleblower can obtain:
*Reinstatement,
*Lost wages,
*Damages for emotional distress and anguish, humiliation, harm to reputation, and other non-economic harms, and
*Attorney’s fees.
In Hobby v. Georgia Power Co., the Administrative Review Board affirmed an award of $250,000 in compensatory damages for emotional distress, humiliation, and loss of reputation.
=='''Filing an ERA Whistleblower Retaliation Complaint'''==
An ERA whistleblowing complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 180 days of when the whistleblower knew or should have known of the retaliatory adverse action.
=='''Licensee Duty to Maintain Safety Conscious Work Environment'''==
The NRC has published guidance for licensees emphasizing the importance of maintaining safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation. In particular, the NRC has articulated the following expectations:
*Employers licensed by the NRC must have processes in place for employees to report safety concerns;
*Subcontractors have the same responsibilities as licensed entities;
*Senior management must involve themselves to the extent necessary to ensure all safety concerns are addressed; and
*Employees have a responsibility to raise safety concerns with their employer, and a right to bring concerns to the NRC if the employer fails to address them.
=='''Wendell H. Ford Aviation Investment and Reform Act for the 21st Century'''==
The AIR21 whistleblower law protects employees in the airline industry against retaliation for raising a concern about air carrier safety. '''==Proving a Violation of AIR21 Whistleblower Protection Law=='''
To prevail under AIR21, the whistleblower must prove:
*the employee engaged in protected whistleblowing;
*the employer was aware of the protected whistleblowing;
*the employer took an adverse action; and
*the protected whistleblowing was a contributing factor in the employer’s decision to take the adverse action.
A contributing factor is any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the decision. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence.
Once the complainant has proven these four elements, the employer may avoid liability only if it demonstrates by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of the whistleblowing.
AIR21 protects an employee of a section 44704 or 44705 FAA certificate holder or a contractor, subcontractor, or supplier of such holder.
=='''Protected Air Safety Whistleblowing'''==
As amended by the Aircraft Certification, Safety, and Accountability Act, AIR21 protects whistleblowers against retaliation for:
*Disclosing a potential violation of any FAA order, regulation, or standard to an employer or the federal government;
*Commencing a proceeding related to a potential violation of an airline safety regulation; or
*Testifying, assisting, or participating in a proceeding related to a potential violation of an airline safety regulation.
Examples of protected disclosures include:
*reporting a violation of the airline’s flight operations manual;
*disclosing that an aircraft is not in airworthy condition;
*identifying falsified FAI documentation (a violation of 14 C.F.R. §21.2(a));
*opposing a violation of 14 C.F.R. § 135.267(c), which limits pilots that conduct Part 135 operations from working more than 14 hours of duty time;
*reporting conduct that would result in “operating an aircraft in a careless or reckless manner so as to endanger the life or property of another”;
*reporting the use of an unsuitable part (a violation of 14 C.F.R. §3.5(c)(2)); and
*reporting that a pilot failed a line check, i.e., which triggers a requirement upon the carrier not to utilize the pilot until the pilot passes the line check.
FAA regulations on airplane safety can be found [https://www.faa.gov/regulations_policies/faa_regulations/ here.]
“As a matter law, an employee engages in protected activity any time [h]e provides or attempts to provide information related to a violation or alleged violation of an FAA requirement or any federal law related to air carrier safety, where the employee’s belief of a violation is subjectively and objectively reasonable.” Sewade v. Halo- Flight, Inc., ARB No. 13-098, slip op. at 7-8 (Feb. 13, 2015). The “complainant must prove that he reasonably believed in the existence of a violation,” which entails both a subjective and an objective component. Burdette v. ExpressJet Airlines, Inc., ARB No. 14-059, slip op. at 5 (Jan. 21, 2016).
The complainant need not prove an actual violation of a regulation, order, or standard relating to air carrier safety, as long as the complainant’s belief in a violation is reasonable. Furland v. Am. Airlines, Inc., ARB No. 90-102, ALJ No. 2008-AIR-011, slip op. at 5 (ARB July 27, 2011). Also, the complainant need not convey his reasonable belief in order for it to be protected. See Newell v. Airgas, Inc., ARB No. 16-007, ALJ No. 2015-STA-6, slip op. at 11 (ARB Jan. 10, 2018).
=='''Prohibited Whistleblower Retaliation Under AIR21 Whistleblower Law'''==
AIR21 prohibits a broad range of retaliatory acts that have a negative effect on the employee’s terms, conditions, or privileges of employment. This includes intimidating, threatening, restraining, coercing, blacklisting, or discharging a whistleblower.
An adverse employment action is one that would dissuade a reasonable worker from engaging in protected whistleblowing.
*Suspension without pay is a way to dissuade employees from engaging in AIR21 protected conduct, and is therefore an adverse employment action.
*Subjecting an employee to a 15D psychological evaluation can be an actionable adverse action where it is selectively implemented or utilized in a retaliatory fashion.
The DOL ARB has held “that the intended protection of AIR 21 extends beyond any limitations in Title VII and can extend beyond tangibility and ultimate employment actions.” Williams v. American Airlines, ARB No. 09- 018, slip op. at 10-11 n.51 (Dec. 29, 2010)). The ARB views “the list of prohibited activities in Section 1979.102(b) as quite broad and intended to include, as a matter law, reprimands (written or verbal), as well as counseling sessions by an air carrier, contractor or subcontractor, which are coupled with a reference of potential discipline.” Williams, ARB No. 09-018 at 10-11. For example, “even paid administrative leave may be considered an adverse action under certain circumstances.” Id. at 14 (emphasis in original) (citing Van Der Meer v. Western Ky. Univ., ARB No. 97-078, slip op. at 4-5 (Apr. 20, 1998) (holding that “although an associate professor was paid throughout his involuntary leave of absence, he was subjected to adverse employment action by his removal from campus)).
=='''Remedies for Airline Industry Workers in AIR21 Whistleblower Protection Cases'''==
Under AIR-21, a prevailing whistleblower can recover:
*Reinstatement;
*Lost wages and benefits;
*Compensatory damages for emotional distress and reputational harm; and
*Attorney fees and litigation costs.
A mechanic who was fired for reporting insufficient maintenance on ambulance helicopters was awarded $485,000 in damages, plus attorney’s fees.
An airline that filed a retaliatory defamation lawsuit against nine whistleblowers was ordered to withdraw its lawsuit and pay $7.9 million in damages to the employees.
In a decision finding that Delta violated the anti-retaliation provision of the AIR21 whistleblower protection law, Judge Morris awarded pilot Karlene Petit $500,000 in compensatory damages for emotional distress, humiliation, and reputational harm.
In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006), the First Circuit affirmed a compensatory damages award of $50,000 for mental anguish where the complainant testified that he depleted his savings and struggled to support his wife and two infant children while he looked for a new full-time job following his termination.
=='''How to File an AIR21 Aviation Safety Whistleblower Retaliation Claim'''==
An AIR-21 whistleblowing retaliation complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 90 days of when the whistleblower knew or should have known of the retaliatory adverse action.
In 2015, the FAA and OSHA entered into a Memorandum of Understanding to facilitate cooperation concerning enforcement of the whistleblower protection provisions in AIR21. The DOL and FAA both play a critical role in enforcing the whistleblower protection provision of AIR21. The FAA investigates complaints related to air carrier safety and enforces air safety regulations and issue sanctions to airmen and air carriers for noncompliance with these regulations.
=='''Surface Transportation Assistance Act'''==
The whistleblower protection provision of the Surface Transportation Assistance Act (“STAA”) protects truck drivers from retaliation where they engage in protected whistleblowing, which includes:
*Refusing to operate a vehicle because: (i) The operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or (ii) He or she has a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle’s hazardous safety or security condition;
*Accurately reporting hours on duty; or
*Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
*Furnishing information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.
In two recent cases, truck drivers prevailed where they were terminated for refusing to drive a damaged truck and refusing to drive while on prescription medication.
=='''Proving a Trucking Safety Whistleblower Protection Claim'''==
A trucking whistleblower must prove the following to prevail in a STAA whistleblower retaliation claim:
*The employee engaged in protected conduct;
*The employer was aware of the protected whistleblowing;
*The employer took an adverse action; and
*The protected whistleblower was a contributing factor in the employer’s decision to take the adverse action.
=='''Prohibited STAA Whistleblower Retaliation'''==
STAA proscribes a wide range of retaliatory adverse actions, including discharging, disciplining or discriminating against a whistleblowing employee regarding pay, terms or privileges of employment. Examples include blacklisting, termination, suspension, demotion, reduction in salary, failure to hire, or any act that would deter a reasonable person from engaging in protected activity.
=='''Remedies Available to Prevailing Trucking Industry Whistleblowers'''==
A prevailing trucking industry whistleblower can recover:
*Reinstatement,
*Lost wages and benefits,
*Damages for emotional distress and anguish, humiliation, harm to reputation, and other *non-economic harms,
*Attorney fees and litigation costs, and
*Punitive damages up to $250,000.
Recently, a truck driver was awarded $150,000 after he was fired for refusing to drive in unsafe weather conditions.
In Fink v. R&L Transfer, Inc., the ARB affirmed an award of compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000 to a truck driver who was terminated for refusing to drive in unsafe winter weather conditions.
=='''How to File a Trucking Safety Whistleblower Retaliation Action'''==
A STAA whistleblowing complaint must be filed initially with the Occupational Safety and Health Administration (OSHA) within 180 days of when the whistleblower knew or should have known of the retaliatory action.
=='''Consumer Financial Protection Act'''==
The anti-retaliation provision of the Consumer Financial Protection Act provides a cause of action for corporate whistleblowers who suffer retaliation for raising concerns about potential violations of rules or regulations of the Consumer Financial Protection Bureau.
OSHA has issued final rules implementing the whistleblower protection provision of the Consumer Financial Protection Act (CFPA). Enacted as Section 1057 of the Dodd-Frank Act, the CFPA’s whistleblower protection provision provides robust protection to employees who disclose fraud related to consumer financial protection services.
The whistleblower protection provisions of the Sarbanes-Oxley Act also provides strong protection for whistleblowers. Click here to download a helpful guide to the Sarbanes-Oxley whistleblower protection law.
=='''Banking Industry Employees Protected by the Consumer Financial Protection Whistleblower Law'''==
The term “covered employee” means “any individual performing tasks related to the offering or provision of a consumer financial product or service.” The CFPA defines a “consumer financial product or service” to include “a wide variety of financial products or services offered or provided for use by consumers primarily for personal, family, or household purposes, and certain financial products or services that are delivered, offered, or provided in connection with a consumer financial product or service . . . Examples of these include . .. residential mortgage origination, lending, brokerage and servicing, and related products and services such as mortgage loan modification and foreclosure relief; student loans; payday loans; and other financial services such as debt collection, credit reporting, credit cards and related activities, money transmitting, check cashing and related activities, prepaid cards, and debt relief services.”
Recently the Fifth Circuit Court of Appeals held in Calderone v. Sonic Houston JLR, L.P that the CFPA does not protect employees of auto dealers.
=='''Scope of Protected Whistleblowing About Consumer Financial Protection Violations'''==
The CFPA protects disclosures made to an employer, to the Consumer Financial Protection Bureau or any State, local, or Federal, government authority or law enforcement agency concerning any act or omission that the employee reasonably believes to be a violation of any CFPB regulation or any other consumer financial protection law that the Bureau enforces. This includes several federal laws regulating “unfair, deceptive, or abusive practices . . . related to the provision of consumer financial products or services.”
Some of the matters the CFPB regulates include:
*kickbacks paid to mortgage issuers or insurers;
*deceptive advertising;
*discriminatory lending practices, including a violation of the Equal Credit Opportunity Act (“ECOA”);
*excessive fees;
*any false, deceptive, or misleading representation or means in connection with the collection of any debt; and
*debt collection activities that violate the Fair Debt Collection Practices Act (FDCPA).
The ECOA prohibits creditors from discriminating against “any applicant, with respect to any aspect of a credit transaction—on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract).” 15 U.S.C. § 1691(a)(1).
CFPA protected conduct includes disclosures concerning:
*'''Loan fraud'''' – Where the plaintiff banker reported a fellow banker for preparing a loan for disbursement without providing the borrower three days to rescind their decision to borrow as required by state and federal consumer protection statutes, the District Court for the Southern District of West Virginia held this could be protected activity. Vaghela v. Huntington Bancshares, Inc., 2018 WL 2014087 (S.D. W.Va. Apr. 30, 2018).
*'''Mortgage overbilling''' – Where the plaintiff mortgage attorney reported what he believed to be a widespread practice of significant overbilling of mortgage loans by a mortgage foreclosure firm, the District Court for the District of Maryland held that this could be protected. Yoder v. O’Neil Group, LLC, 2017 WL 6206074 (D. Md. Dec. 8, 2017).
*'''Banking fraud''' – Where former bank employees alleged termination for reporting fraudulent sales practices that they alleged were violations of the Truth in Lending Act, the Home Ownership Equity Protection Act, and the Real Estate and Settlement Procedures Act, the District Court for the Northern District of Illinois held reporting violations of any of these statutes would be protected activity and retaliatory termination for objecting to these violations would violate the CFPA. Lysik v. Citibank, N.A., 2017 WL 4164037 (N.D. Ill. Sep. 20, 2017).
*'''Lapses in bank management and judgment''' – Where a bank’s treasurer and chief financial officer uncovered and reported serious mismanagement of a bank and its funds, including the bank’s president using the business credit card for personal expenses and engaging in pattern of unusual check cashing by cashing checks by placing holds on employee accounts, the District Court for the District of Massachusetts held this could constitute protected activity. Becotte v. Cooperative Bank, 2017 WL 886967 (D. Mass. Mar. 6, 2017).
While the CFPB’s whistleblower protections are relatively broad, simply asking questions about alleged violations of banking laws will generally not constitute protected conduct. The Sixth Circuit Court of Appeals has held that where a mortgage loan originator had a conversation with his employer bank’s mortgage compliance department about the obligation to mail out adverse action notices informing mortgage loan applicants that they had been denied loans and liability for failure to do so, he did not engage in protected activity. The court held the plaintiff-employee did not engage in protected activity because he did not object to the unlawful practice and instead only asked questions confirming and clarification what he should do in the future. The court, in its decision, implied that if the mortgage loan originator had instead objected to unlawful activity rather than only asking questions, his activity would have been protected under the CFPA, and his employer may have violated the statute by terminating his employment. See Veard v. F&M Bank, 704 Fed. Appx. 469 (6th Cir. 2017).
=='''Reasonable Belief Standard in Banking Whistleblower Retaliation Cases'''==
The CFPA whistleblower protection law employs a reasonable belief standard. As long as the plaintiff’s belief is reasonable, the whistleblower is protected, even if the whistleblower makes a mistake of law or fact about the underlying violation of a law or regulation under the CFPB’s jurisdiction.
=='''Prohibited Whistleblower Retaliation Against Financial Services/Banking Industry Employees'''==
The CFPA whistleblower law proscribes a broad range of adverse employment actions, including terminating, “intimidating, threatening, restraining, coercing, blacklisting or disciplining, any covered employee or any authorized representative of covered employees” because of the employee’s protected whistleblowing.
=='''Proving CFPA Whistleblower Retaliation'''==
To prevail under a CFPA whistleblower claim, the whistleblower need only prove that his or her protected conduct was a contributing factor in the adverse employment action, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer’s decision. Where the employer takes the adverse employment action “shortly after” learning about the protected activity, courts may infer a causal connection between the two. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009).
=='''Filing a CFPA Financial Whistleblower Retaliation Claim'''==
CFPA complaints are filed with OSHA, and the statute of limitations is 180 days from the date when the alleged violation occurs, which is the date on which the retaliatory decision has been both made and communicated to the whistleblower.
The complaint need not be in any particular form and can be filed orally with OSHA. A CFPA complaint need not meet the stringent pleading requirements that apply in federal court, and instead the administrative complaint “simply alerts OSHA to the existence of the alleged retaliation and the complainant’s desire that OSHA investigate the complaint.” If the complaint alleges each element of a CFPA whistleblower retaliation claim and the employer does not show by clear and convincing that it would have taken the same action in the absence of the alleged protected activity, OSHA will conduct an investigation.
OSHA investigates CFPA complaints to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. If OSHA finds a violation, it can order reinstatement of the whistleblower and other relief.
=='''Federal Railroad Safety Act'''==
The [https://www.law.cornell.edu/uscode/text/49/20109 Federal Railroad Safety Act] prohibits rail carriers from retaliating and discriminating against employees who, inter alia, reported violations of federal railroad safety laws or refused to work under hazardous conditions.
Congress enacted the FRSA whistleblower protection law to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents. The FRSA whistleblower protection law is intended to address and rectify railroads’ history of systematically suppressing employee injury reports through retaliatory harassment and intimidation. See Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156–57 & n.3, 159 & n.6 (3d Cir. 2013) Congress intended to “ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employers.” H.R. Rep. 110-259, 248.”
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=='''Railroad Industry Protected Whistleblowing'''==
The FRSA prohibits retaliation against a railroad employee who provides information to a regulatory or law enforcement agency, a member of Congress, or any person with supervisory authority over the employee about a reasonably perceived violation of federal law relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety. In addition, the FRSA protects an employee who:
*refuses to violate a federal law, rule or regulation related to railroad safety or security;
*files a complaint under FRSA;
*notifies or attempts to notify the railroad carrier or Department of Transportation of a work-related personal injury or illness of an employee;
*cooperates with safety or security investigations conducted by the DOT, Department of Homeland Security, or National Transportation Safety Board;
*furnishes information to the DOT, DHS, NTSB, or any federal, state or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation; or
*accurately reports hours on duty.
Under the FRSA’s good-faith report requirement, any report made in good faith is protected activity; whether the medical cause of an injury is ultimately work-related is immaterial. Koziara v. BNSF Railway Co., No. 13-cv-834-jdp, 2015 WL 137272, at *6-7 (W.D. Wis. Jan. 9, 2015); Davis v. Union Pacific Railroad Co., No. 5:12-CV-2738, 2014 WL 3499228, at *6-7 (W.D. La. July 14, 2014).
Examples of FRSA protected whistleblowing include:
*Refusing to perform a roll-by inspection from the ground, where the complainant reasonably believed the inspection would violate Canadian National Railroad Operating Rule 523, which requires: “When duties and terrain permit, at least two crew members of a standing train . . . must inspect passing trains on the ground on both sides of the track. At locations where trains will meet, the train to arrive second must notify the first train when they pass the approach to the siding, to allow crew members to be in position for inspection.”
=='''Scope of Prohibited Retaliation/Adverse Actions'''==
The FRSA prohibits a wide range of retaliatory actions, including discharging, demoting, suspending, reprimanding, or in any other way discriminating against a whistleblower. As Judge Gee recently held in Herbert Rothschild v. BNSF Railway Co., 2017-FRS-0003 (Jan. 2, 2019): The list of prohibited activities is “quite broad” and includes reprimands or counseling sessions “which are coupled with a reference to potential discipline.” Williams v. American Airlines, ARB No. 09-00018, ALJ No. 2007-AIR-00004, slip op. at 10-11(ARB Dec. 29, 2010). . .[A] notice of investigation [can be actionable retaliation] because it does more than refer to “potential” discipline: it notifies the employee that disciplinary processes have been initiated against him. Even if the investigation were ultimately to be canceled, the employee would be aware that his employer was in the process of mustering evidence and witnesses against him, and that he faced a very real risk of discipline. . . . the notice of investigation is the first step in a disciplinary process that can lead to discipline and loss of income, and is part of a progressive discipline policy where successive violations lead to more serious consequences, potentially including termination. . . A written warning is presumptively adverse, including where it implicitly or explicitly references potential discipline. Williams v. American Airlines, ARB No. 09-00018, at 11.
However, being called a “rat” in the workplace is not sufficient to be an adverse employment action where no discipline was threatened, the whistleblower’s position was not changed, and the employer took action to remedy the situation. Clay McDonald v. Union Pacific Railroad Co., 2016-FRS-00034 (ALJ Aug. 20, 2019).
=='''Proving FRSA Whistleblower Retaliation'''==
A “contributing factor” is a factor that had any tendency to affect the employer’s decision to take an adverse action. It is an intentionally low bar that allows an employee to prevail even if his protected activity is only one of many factors the employer considered. Because of this, an employee is not required to prove pretext or retaliatory motive to satisfy the contributing factor standard.
“Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way—even as a necessary link in a chain of events leading to adverse activity.” Hutton v. Union Pacific R.R. Co., No. 11-091, 2013 WL 2450037, at *9 (ARB May 31, 2013).
For example, if an employee’s injury report led to an investigation, which in turn led to discipline, the protected conduct (reporting the injury) can be deemed a contributing factor in the adverse action. Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013). An FRSA plaintiff “need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.” Araujo 708 F.3d at 158 (3d Cir. 2013) (quoting Marano v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993)).
Contributing factor causation can be shown by alleging facts regarding “temporal proximity, indications of pretext, and a change in the employer’s attitude toward the employee after he engages in protected activity.” Rookaird v. BNSF Ry. Co., No. C14-176RSL, 2015 WL 6626069, at *2 (W.D. Wash. Oct. 29, 2015).
Circumstantial evidence may include a wide variety of evidence, such as temporal proximity, indications of pretext, inconsistent application of an employer’s policies, an employer’s shifting explanations for its actions, antagonism or hostility toward a complainant’s protected activity, the falsity of an employer’s explanation of the adverse action taken, and a change in the employer’s attitude toward the complainant after he or she engages in protected activity. Bechtel v. Competitive Techs., Inc., ARB No. 09-052, ALJ No. 2005-SOX-033, slip op. at 13 (ARB Sept. 30, 2011).
If a complainant proves pretext, it may be inferred that his protected activity contributed to the termination. Riess v. Nucor Corp., ARB 08-137, 2008-STA-011, slip op. at 6 (ARB Nov. 30, 2010).
Proof of animus towards protected activity may be sufficient to demonstrate discriminatory motive. Sievers v. Alaska Airlines, Inc., ARB No. 05-109, ALJ No. 2004-AIR-028, slip op. at 4-5 (ARB Jan. 30, 2008). “[R]idicule, openly hostile actions or threatening statements,” may serve as circumstantial evidence of retaliation. Timmons v. Mattingly Testing Services, 1995-ERA-00040 (ARB June 21, 1996).
“Where protected activity and unfavorable employment actions are inextricably intertwined, causation is established without the need for circumstantial evidence; however, such -33 -evidence may certainly bolster the causal relationship.” Benjamin v. Citationshares Management, L.L.C., ARB No. 12-029, ALJ No. 2010-AIR-001, slip op. at 12 (ARB Nov. 5, 2013).
=='''Retaliatory Investigations Against Whistleblowers'''==
Under certain whistleblower protection laws, a retaliatory investigation can be actionable. Two cases decided under the [https://www.zuckermanlaw.com/railroad-safety-whistleblower-protection-lawyers/ Federal Rail Safety Act (FRSA)] outline when an employer’s investigation into an employee’s conduct may be considered actionable retaliation.
[https://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/FRS/12_003.FRSP.PDF?_ga=2.243945027.732576337.1607740563-27394514.1607198690 In Vernace v. Port Authority Trans-Hudson Corp.], ARB No. 12-003, ALJ No. 2010-FRS-018 (ARB Dec. 21, 2012), Laura Vernace filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that her employer, Port Authority Trans-Hudson Corporation (PATH) violated the FRSA by retaliating against her after she filed an injury report that disclosed an injury she incurred from sitting on a broken chair at work. Soon after she filed the injury report, PATH sent her a charging letter accusing her of “fail[ing] to exercise . . . care and utilize safe work practices to prevent injury” when she did not inspect the chair before sitting on it. A year-long investigation ensued.
OSHA found a violation of the FRSA anti-retaliation law, and the ALJ also determined that PATH unlawfully discriminated against Vernace. In affirming the ALJ’s findings, the ARB held that Path took an adverse action against Vernace when it subjected her to a disciplinary investigation. The ARB noted that the ALJ rightly stated that the FRSA regulations prohibit “intimidating” and “threatening” actions. Further, the ARB explained that Congress had expressly included “threatening discipline” as prohibited discrimination under the FRSA.
PATH contended that it had initiated the disciplinary investigation because of Vernace’s allegedly unsafe use of a chair and not because she submitted an injury report. The ALJ and ARB, however, found that this distinction ignored the plain language of the statute as well as the FRSA’s legislative history citing abuse and intimidation practices often inflicted on railroad workers for reporting or attempting to report work-related injuries.
In Perez v. BNSF Railway Co., ARB Nos. 2017-0014, 2017-0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020), the ARB clarified the types of investigations that can constitute actionable retaliation, and overturned Vernace to the extent that it stood for the proposition that all disciplinary investigations are adverse actions. Citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the ARB held that all adverse actions, including alleged retaliatory investigations, must be considered in context, focusing on whether the action would dissuade a reasonable worker from engaging in protected activity.
Perez worked as a machinist for BNSF and was injured on the job while trying to prevent a door from falling off a train and onto another employee. He reported the injury to his supervisor and saw a doctor at an occupational clinic, per the instruction of a BNSF nurse case manager. Although he identified his injury in an injury report form as a strained hamstring, he attempted to tell the doctor about back pain four times during the course of treatment, but the doctor told him repeatedly that he did not need an MRI or to see a specialist and should instead give it some time to heal. Perez testified that he believed that the doctor worked for BNSF, and therefore assumed that he had reported his back injury to his employer. BNSF, however, alleged that Perez did not report the back injury to a regular BNSF employee until two years later. Perez testified that he had also reported his injury and the incident to a company claims manager, who advised him to wait to submit a claim.
Perez sought treatment for leg and back injuries from his primary care physician and an orthopedic specialist but did not inform BNSF about the treatment until two years after his injury, when he sought a release for back surgery, which was scheduled for the next day. He and his union representative met with the yard foreman, who asked if Perez had informed anyone about the back injury. The foreman stated that the doctor Perez had reported the injury to was not a company doctor, and the claims manager gave a conflicting version of the conversation he and Perez had had two years earlier.
BNSF sent Perez a notice of investigation a month later informing him that the investigation was prompted by an allegation of late reporting of a back injury and an allegation of dishonesty based on Perez’s assertion that the claims manager refused to take his statement. At the close of the investigation, the manager in charge of the company’s discipline policy recommended no discipline, and Perez returned to work having lost no pay, seniority, or benefits.
Citing the ARB’s decision in Vernace, the ALJ rejected BNSF’s claim that an investigation that does not result in discipline is not an adverse action, and held that BNSF’s investigation of Perez was retaliatory and constituted an actionable adverse employment action.
On appeal, the ARB held that a disciplinary charge and related investigation alone do not automatically constitute actionable adverse actions. Investigations may be adverse actions when those investigations are retaliatory, pretextual, performed in bad faith, or harassing. And an investigation might be an adverse action where it accompanies other material consequences that could affect an employee’s terms and conditions of employment or that might otherwise dissuade a reasonable employee from engaging in protected activity.
In remanding the case to the ALJ, the ARB directed the ALJ to determine whether BNSF’s investigation was bad-faith harassment, or if instead, it had been a good-faith, routine investigation to determine whether a violation of the company’s policies had occurred. Where a disciplinary investigation was retaliatory, harassing, and made in bad faith, a court may find that the investigation is an actionable adverse action.
=='''Affirmative Defense for Rail Carriers in FRSA Whistleblower Retaliation Cases'''==
A rail carrier can escape liability if it demonstrates by clear and convincing evidence it would have taken the adverse action absent protected activity.
A key method to prove the same-decision affirmative defense is comparator evidence. But FRSA whistleblower should scrutinize such evidence carefully to test whether it is truly relevant. For example, if a rail carrier terminates a whistleblower for discrepancies in the whistleblower’s protected disclosure, evidence of discipline for patently and materially false hearing testimony is not relevant.
It is also important to consider “the proportional relationship between the adverse actions and the bases for the actions.” See Speegle v. Stone & Webster Constr., Inc., ARB Case No. 13-074, 2014 WL 1758321, at *7 (Dep’t of Labor Admin. Review Bd. Apr. 25, 2014).
=='''Damages and Remedies for FRSA Whistleblowers'''==
A prevailing whistleblower can obtain a wide range of remedies, including: (1) reinstatement, (2) back pay, (3) compensatory damages, (4) attorney fees and litigation costs; and (5) punitive damages up to $250,000.
In 2017, the First Circuit affirmed an award of $250,000 in punitive damages, the maximum amount that the FRSA allows, where rail carrier Pan Am “utilized the [disciplinary] process to intimidate and discourage protected activity.” Pan Am Railways, Inc. v. United States Department of Labor, ___ F.3d ___, 2017 U.S. App. LEXIS 7047 (1st Cir. April 21, 2017). In that case, the ALJ specifically found that Pan Am had willfully retaliated against the whistleblower for filing an OSHA complaint and that it had “consciously disregarded Raye’s statutorily-protected rights under the FRSA, and in fact intentionally interfered with the exercise of those rights.”
=='''FRSA Statute of Limitations'''==
The statute of limitations to file a FRSA whistleblower retaliation claim is 180 days. As the Third Circuit held in Guerra v. Consolidated Rail Corporation, Court of Appeals, No. 18-2471, (3rd Cir. 2019, the FRSA’s statute of limitations is a nonjurisdictional claim-processing rule. However, failing to file within the statute of limitations will likely result in the dismissal of the claim.
=='''Demonstrating a Protected Disclosure'''==
A September 2021 Second Circuit decision in Ziparo v. CSX Transportation, Inc., 20-1196-cv (2d Cir. Sept 24, 2021) holds that complaints of stressful and distracting work conditions may well fall within the scope of “hazardous safety or security condition[s]” under § 20109(b)(1)(A). The court also held that “a railroad employee engages in protected activity under § 20109(b)(1)(A) when she reports what she subjectively believes to be a hazardous safety or security condition irrespective of whether that understanding is objectively reasonable.”
=='''National Transit Systems Security Act'''==
In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 ("9/11 Act"). The 9/11 Act includes ''''The National Transit Systems Security Act of 2007''' (NTSSA), which provides whistleblower protection to public transportation employees who disclose information about perceived violations of federal law concerning public transportation.
=='''Protected Activities Under NTSSA'''==
An employee engages in protected activity by:
*Reporting a hazardous safety or security condition
*Refusing to work when confronted by a hazardous safety or security condition
*Refusing to authorize the use of any safety or security related equipment, track or structures under hazardous conditions
*Providing information or assisting an investigation regarding conduct that the employee reasonably believes constitutes a violation of Federal law relating to public transportation safety or security, fraud, waste or abuse of federal grants or other funds intended to be used for public transportation safety or security
*Being perceived by the employer to have engaged in the protected activity
*Refusing to violate a federal law
*Refusing to assist the violation of a federal law
*Filing an employee protection complaint under NTSSA
*Cooperating with a safety or security investigation conducted by the DOT, DHS or NTSB
*Furnishing information to the DOT, DHS, NTSB or any federal, state, or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with public transportation.
An ''''employee need not prove that his disclosure is correct.''' Instead, the NTSSA whistleblower protection statute applies a "reasonable belief" standard. Under that standard, a reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of the enumerated transportation safety laws is protected. To determine whether the employee's disclosure is objectively reasonable, the fact finder considers whether a reasonable person with the employee's training and experience would reasonably believe that the employer was violating the relevant law or regulation.
=='''Prohibited Adverse Actions'''==
NTSSA prohibits an employer from discriminating against employees because of their whistleblowing activities. This includes:
*intimidation
*blacklisting
*termination
*suspension
*demotion
*reduction in salary
*failure to hire
*harassment
=='''Burden of Proof in An NTSSA Case'''==
To prevail in an NTSSA case, an employee must establish that he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action. If the employee successfully establishes that his protected activity was a contributing factor to the adverse action, he will win unless an employer can prove by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.
=='''Remedies Available for a Prevailing Employee'''==
A prevailing employee is entitled to reinstatement, back pay, and compensatory damages. In addition, a prevailing employee can recover exemplary or punitive damages up to $250,000.
=='''Procedure for filing a NTSSA retaliation complaint'''==
Employees who believe they were subjected to retaliation for reporting alleged violations of the NTSSA may file a complaint with the Department of Labor within 180 days of the employee becoming aware of the retaliatory action. OSHA investigates the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA's determination by requesting a de novo hearing before a DOL Administrative Law Judge. If DOL does not issue a final decision within 210 days of the employee filing the complaint, the employee can remove the complaint to a federal district court.
=='''Consumer Product Safety Improvement Act'''==
Prompted by concerns of lead-laden children’s toys and insufficient regulation of consumer product safety, consumer product safety, Congress enacted the Consumer Product Safety Improvement Act of 2008 (CPSIA) on August 14, 2008. The CPSIA strengthens the authority of the CPSC and imposes new certification requirements on manufacturers and distributors.
To ensure that workers can blow the whistle on consumer product safety issues, Congress included in the CPSIA a whistleblower protection provision that prohibits manufacturers, private labelers, distributors, and retailers from retaliating against an employee because the employee provided information to an employer, a regulatory agency, or a state attorney general about a reasonably perceived violation of any law enforced by the CPSC. The regulations implementing the CPSC whistleblower protection law are available by clicking here.
The CPSIA whistleblower law applies to manufacturers, private labelers, distributors, and retailers. A consumer product is any article, or component part thereof, produced or distributed:
*(i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or
*(ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.
15 U.S.C. § 2052(a)(5). A product that is not “customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer” will likely not be deemed a consumer product. 15 U.S.C. § 2052(a)(5)(A).
=='''Protected Whistleblowing Under the Consumer Product Safety Improvement Act'''==
The [https://uscode.house.gov/view.xhtml?req=(title:15%20section:2087%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section2087)&f=treesort&edition=prelim&num=0&jumpTo=true CPSIA] prohibits an employer from terminating or otherwise discriminating against an employee because the employee:
#provided information to the employer, the federal government, or a state attorney general “relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision” of an order, rule, regulation, standard, or ban enforced by the CPSC;
#testified, assisted, or participated in a proceeding concerning a violation of a CPSC rule or regulation, or
#refused to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates a CPSC rule or regulation.
Examples of protected whistleblowing include:
*Reporting violations of the standard for the flammability of children’s sleepwear;
*Disclosing information about the use of consumer patching compounds containing free-form asbestos;
*Reporting an employer’s violation of a safety standard for creating architectural glazing materials; and
*Reporting choking incidents involving marbles, small balls, latex balloons, and other small parts.
The CPSIA protects employees who blow the whistle in the normal course of performing their job duties.
=='''Prohibited Retaliation by the Consumer Product Safety Whistleblower Law'''==
The CPSIA prohibits a wide array of adverse employment actions, including termination and discrimination with respect to the employees’ pay, terms, conditions, or privileges of employment.
=='''Causation Standard Under the CPSIA'''==
To prevail in a CPSIA whistleblower action, the whistleblower must establish that protected whistleblowing was a contributing factor in the unfavorable personnel action. The whistleblower need not prove that protected conduct was the sole factor in the employer’s decision to take the adverse employment action.
=='''Remedies or Damages Available to Consumer Product Safety Whistleblowers'''==
“Make whole” relief includes:
*reinstatement,
*back pay,
*uncapped compensatory damages,
*attorney fees and litigation costs, including expert witness fees.
=='''How to File a CPSIA Whistleblower Retaliation Action'''==
The statute of limitations for filing a consumer product safety whistleblower claim is 180 days from the date on which the employee is first informed of the adverse employment action (which can be earlier than the effective date of the adverse action).
After the complaint is filed, the Occupational Safety and Health Administration (OSHA) investigates the complaint and may order preliminary relief, including reinstatement of the whistleblower to his previous position. Either the whistleblower or the employer can appeal OSHA’s determination by requesting to have the full case heard by a Dept. of Labor administrative judge.
If the Department of Labor has not issued a final decision with 210 days of the filing of the complaint, the whistleblower can remove the case to federal court.
=='''Food Safety Modernizations Act'''==
The FDA Food Safety Modernization Act (FSMA), which imposes stricter food safety standards and grants the Food and Drug Administration greater authority to regulate tainted food, includes a whistleblower protection provision. The FMSA was prompted in part by numerous instances of fatal food contamination that revealed insufficient regulation and oversight of food production, including outbreaks of contaminated peanuts, eggs, and produce. The Centers for Disease Control and Prevention estimate that there are 76 million cases of foodborne disease each year in the United States, 5,000 of which result in death.
To ensure that workers can disclose food safety concerns without fear of reprisal, Congress included in the FMSA a robust whistleblower protection provision (Section 402) that protects workers engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. The bill must be reconciled with a House version of the bill, H.R. 2749, which passed on July 30, 2009, and final passage is expected to occur by the end of the year.
Section 402 applies to any entity “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”
=='''Broad Scope of Protected Conduct'''==
The FSMA prohibits retaliation against an employee who has:
#Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
#Testified or is about to testify in a proceeding concerning such violation;
#Assisted, participated or is about to assist or participate in such a proceeding; or
#Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.
A Section 402 complainant need not demonstrate that she disclosed an actual violation of a food safety law or regulation. Instead, Section 402 employs a “reasonable belief” standard that the Department of Labor (DOL) and federal courts have construed as protecting a reasonable but mistaken belief that an employer may have violated a particular law. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009) (“to encourage disclosure, Congress chose statutory language which ensures that an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected.”) (internal quotation, citation omitted); Allen v. Admin. Review Bd., 514 F. 3d 468, 477 (5th Cir. 2008) (applying “reasonable belief” standard in a Sarbanes-Oxley whistleblower retaliation action); Kalkunte v. DVI Fin. Svcs., Inc., ARB Nos. 05-139 & 05-140, 2004-SOX-056 (ARB Feb. 27, 2009) (clarifying that a reasonable but mistaken belief is protected under SOX). The reasonable belief standard consists of both a subjective and objective component, and objective reasonableness “is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Allen, 514 F.3d at 477.
The “duty speech” doctrine will not apply to FSMA retaliation claims, as the text specifically protects disclosures made “in the ordinary course of the employee’s duties.”
Some examples of protected conduct include the following:
#Reporting that imported cheese is being stored at the wrong temperature and is therefore susceptible to spoiling or containing harmful bacteria;
#Reporting that an additive harmful only to infants was added to infant formula;
#Reporting that bread is being stored in a facility infested with flies and rodents;
#Reporting that a peanut butter manufacturer did not recall peanut butter it knew might have been made using a batch of contaminated peanuts; and
#Reporting that a chemical used to lubricate sorting machines has contaminated dietary supplements.
=='''Prohibited Whistleblower Retaliation'''==
An employer is prohibited from discharging or “in any manner discriminat[ing] against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment.” The DOL’s Administrative Review Board (ARB) applies the Burlington Northern standard to analogous whistleblower protection statutes, and therefore Section 402 will prohibit not only tangible adverse actions, but also any action that may dissuade a reasonable employee from engaging in further protected activity. See Melton v. Yellow Transp. Inc., ARB No. 06-052, 05-140, ALJ No. 2005-STA-002 (ARB Sept. 30, 2008) (holding that the Burlington Northern standard applies to whistleblower retaliation claims before the DOL).
Prohibited acts of retaliation will likely include:
*termination
*suspension
*demotion
*reduction in pay
*failure to promote
*failure to hire
*diminution in job duties
*blacklisting
=='''Employee-Favorable Causation Standard and Burden of Proof'''==
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. See Klopfenstein v. PPC Flow Techs. Holdings, Inc., ARB No. 04-149 at 18, ALJ No. 2004-SOX-11 (ARB May 31, 2006) (internal citation omitted). Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.” See Peck v. Safe Air Int’l, Inc., ARB No. 02-028 at 9, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004).
=='''Remedies for Whistleblower Retaliation'''==
Remedies include:
*injunctive relief
*reinstatement
*back pay with interest
*“special damages”
*attorney’s fees
*litigation costs
*expert witness fees
Where reinstatement is unavailable or impractical, front pay may be awarded. “Special damages” has been construed under similar whistleblower protection statutes to include damages for pain, suffering, mental anguish and an injured career or reputation. See, e.g., Kalkunte, ARB Nos. 05-139 & 05-140 at 15 (SOX case awarding complainant emotional distress damages); Hannah v. WCI Communities, 348 F. Supp. 2d 1332, 1334 (S.D. Fla. 2004) (“a successful Sarbanes-Oxley Act plaintiff cannot be made whole without being compensated for damages for reputational injury that diminished plaintiff’s future earning capacity”). A complainant may also be entitled to damages for loss to his reputation as part of the “make whole” remedy provided by the statute. See Hannah, 348 F. Supp. 2d at 1334.
=='''Procedures Governing Section 402 Whistleblower Retaliation Claims'''==
A complainant must file her complaint with the Occupational Safety and Health Administration (OSHA) within 180 days after the date on which the retaliatory adverse action occurred. OSHA will investigate the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA’s determination by requesting a de novo hearing before a DOL Administrative Law Judge (ALJ), but objecting to an order of preliminary relief will not stay the order of reinstatement. Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court, and the hearings are less formal than federal court trials. For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ’s decision to the ARB and can appeal an ARB decision to the circuit court of appeals in which the adverse action took place.
If the Secretary of Labor fails to issue a final decision within 210 days of the filing of a complaint, or within 90 days after receiving a written determination from OSHA, the complainant can remove her claim to federal court for de novo review and either party may request a trial by jury. Section 402 does not preempt or diminish any other remedy for retaliation provided by Federal or State law, and therefore a Section 402 complainant could remove the claim to federal court and add additional claims, such as a common law wrongful discharge action, which would provide an opportunity to obtain punitive damages.
=='''Criminal Antitrust Anti-Retaliation Act'''==
The [https://www.zuckermanlaw.com/wp-content/uploads/Criminal-Antitrust-Anti-Retalia-tion-Act-of-2019.pdf Criminal Antitrust Anti-Retaliation Act,] which was signed into law on December 23, 2020, protects whistleblowers against retaliation for disclosing evidence of criminal cartel activity.
=='''Protection Against Retaliation under the Criminal Antitrust Anti-Retaliation Act'''==
The Criminal Antitrust Anti-Retaliation Act protects any employee, contractor, subcontractor, or agent of an employer.
The Criminal Antitrust Anti-Retaliation Act does not apply where:
*the covered individual planned and initiated a violation or attempted violation of the antitrust laws;
*the covered individual planned and initiated a violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of the antitrust laws; or
*the covered individual planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws.
=='''Whistleblowing Protected Under the Criminal Antitrust Anti-Retaliation Act'''==
The Act protects an employee (1) providing information to an employer, a federal regulatory or law enforcement agency, or Congress concerning an act or omission the individual reasonably believes to be a violation of the antitrust laws (section 1 or 3 of the Sherman Act) or a violation of another criminal law committed in conjunction with a potential violation of the antitrust laws; or (2) participating in, or otherwise assisting, an investigation relating to such a violation.
Criminal prosecutions of Sherman Act violations are typically limited to intentional and clear violations such as price fixing, bid rigging, and market allocation among competitors (also known as “horizontal agreements”). According to the Department of Justice’s Antitrust Resource Manual, price fixing generally involves any agreement between competitors to tamper with prices or price levels, or terms and conditions of sale for commodities or services. Bid rigging generally involves an agreement or arrangement among companies to determine the successful bidder in advance of a bid letting at a price set by the successful bidder. Horizontal customer allocation is an agreement among competitors at the same level of distribution of a product or service that each will service certain designated customers or classes of customers and will not attempt to compete, or will limit the manner in which they will compete, for the business of customers allocated to a competitor.
Note that some forms of protected conduct under the Criminal Antitrust Anti-Retaliation Act are also protected under other whistleblower protection laws. For example, a disclosure about bid-rigging to obtain a contract with a federal agency can also be protected conduct under the Defense Contractor Whistleblower Protection Act and the False Claims Act.
=='''Type of Retaliation Prohibited Against Antitrust Whistleblowers'''==
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.
=='''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 [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.
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.
=='''Remedies or Damages in an Antitrust Whistleblower Retaliation Case'''==
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.
=='''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.
=='''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 [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.
=='''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:
“Competition is essential for a thriving, affordable and innovative marketplace. When our antitrust laws are violated, consumers are often left paying the price. The Criminal Antitrust Anti-Retaliation Act encourages and shields from reprisal private sector employees to shine a light on activities that violate our antitrust laws. This bipartisan bill is an important step to safeguarding fair marketplaces as well as the whistleblowers who support them. It’s earned broad support in both chambers of Congress, and I urge President Trump to sign it into law without delay,” Grassley 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 [https://www.gao.gov/assets/gao-11-619.pdf GAO Report about criminal cartel enforcement.]
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