Section 806 of the Sarbanes-Oxley Act protects whistleblowers at covered employers who report to their supervisor or the government conduct that they reasonably believe constitutes wire fraud, mail fraud, bank fraud, securities fraud, or a violation of any rule or regulation of the SEC, or any provision of Federal law relating to fraud against shareholders.
Some SOX whistleblowers have obtained substantial recoveries, including jury verdicts of $11M and $5M in SOX whistleblower retaliation cases. Leading SOX whistleblower lawyer Jason Zuckerman has established favorable precedent construing SOX and has obtained more than ten settlements in SOX matters in excess of $1 million, two of which were above $4 million.
To succeed in a Sarbanes-Oxley retaliation claim, the whistleblower must show by a preponderance of the evidence that
- she had engaged in protected whistleblowing activity;
- the company was aware of her protected activity;
- she suffered an unfavorable personnel action; and
- her protected activity was a “contributing factor” in the unfavorable action.
“Contributing factor” causation is a light burden that can be met by showing that protected activities tended to affect in any way the decision to take the adverse action.
Once the whistleblower makes that showing, the company can avoid liability only by proving by clear and convincing evidence that it would have taken the same adverse action even in the absence of the protected activity.
A helpful guide to SOX titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers elaborates on protections afforded whistleblowers under the law.
Protected Whistleblowing Under the Sarbanes-Oxley Act
The Sarbanes-Oxley whistleblower law protects corporate whistleblowers for providing information about securities fraud, shareholder fraud, bank fraud, a violation of any SEC rule or regulation, mail fraud, or wire fraud. The Department of Labor has construed SOX whistleblowing broadly, holding that:
- Disclosing a potential violation is protected, i.e., an employee who reasonably believes that a securities violation is imminent will be protected by SOX if he or she reports the violation before it actually occurs.
- An employee’s mistaken belief in a violation of law can be objectively reasonable. The reasonable person standard recognizes that many employees are unlikely to be trained to recognize legally actionable conduct by their employers. To satisfy the objective component of the “reasonable belief” standard, the employee must prove that a reasonable person in the same factual circumstances with the same training and experience would believe that the employer violated securities laws.
- To be protected under SOX, the employee’s report need not “definitively and specifically” relate to one of the listed categories of fraud or securities violations in Section 806 of SOX. The focus is “on the plaintiff’s state of mind rather than on the defendant’s conduct.” Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008).
Prohibited Whistleblower Retaliation Under Sarbanes-Oxley
The whistleblower protection provision of the Sarbanes-Oxley Act prohibits a broad range of retaliatory adverse employment actions, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower. Recently a federal court of appeals held that merely outing or disclosing the identity of a whistleblower is actionable retaliation under SOX.
Proving Sarbanes-Oxley Whistleblower Retaliation
To prevail under SOX’s whistleblower provision, an employee must prove by a preponderance of the evidence that
- they engaged in protected activity;
- the employer knew that they engaged in the protected activity;
- they suffered an unfavorable personnel action; and
- the 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. Causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity. The decision-maker’s knowledge of the protected activity and close temporal proximity will suffice to prove causation in some cases.
Once the employee proves the elements of a Sarbanes-Oxley whistleblower retaliation claim 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 unfavorable personnel action in the absence of the complainant’s protected behavior or conduct.
Recent SOX Whistleblower Recoveries
There is no cap on special damages under SOX, and some state whistleblower protection laws enable whistleblowers to recover punitive damages. Recently corporate whistleblowers have obtained substantial recoveries in SOX whistleblower cases:
- Jury Awards Former Bio-Rad Counsel $11M in Sarbanes-Oxley Whistleblower Case
- Jury Awards Six Million Dollars to Whistleblower in Sarbanes-Oxley Case
- Sarbanes-Oxley Whistleblower Recovers Nearly $5 Million
- JP Morgan SOX Whistleblower [Wins $1.13M at Trial
- UBS Whistleblower Prevails at Trial in SOX Whistleblower Case
Remedies in Whistleblower Retaliation Cases
Whistleblower retaliation can exact a serious toll, including lost pay and benefits, reputational harm, and emotional distress. Indeed, whistleblower retaliation can derail a career and deprive the whistleblower of millions of dollars in lost future earnings.
Whistleblowers should be rewarded for doing the right thing, but all too often they suffer retaliation and find themselves marginalized and ostracized. Federal and state whistleblower laws provide several remedies to compensate whistleblowers that have suffered retaliation, including:
- back pay (lost wages and benefits);
- emotional distress damages;
- damages for reputational harm;
- reinstatement or front pay in lieu thereof;
- lost future earnings; and
- punitive damages.
Click here for examples of substantial verdicts and settlements in whistleblower retaliation cases. Recently, the Pennsylvania Supreme Court affirmed an award of approximately $3.2 million in a whistleblower protection case.
Back Pay in Whistleblower Retaliation Cases
Back pay is compensation for lost wages and benefits that the whistleblower would have earned absent the adverse employment action, offset by interim earnings. A back pay award may include all promotions and salary increases the complainant would have received in the absence of retaliation. See, e.g., Welch v. Cardinal Bankshares Corp., 2003-SOX-15, at 17 (ALJ Feb. 15, 2005) (holding that a prevailing complainant “is entitled to all promotions and salary increases that he would have obtained but for the illegal discharge”) rev’d on other grounds, 536 F.3d 269 (4th Cir. 2008). The value of stock options is recoverable in SOX whistleblower cases. Hagman v. Washington Mutual Bank, Inc., 2005-SOX-73, 2006 WL 6105301, *32 (Dec. 19, 2006).
In addition to back pay, a prevailing whistleblower is entitled to prejudgment interest under certain whistleblower protection laws. Prejudgment interest accrues from the time of the whistleblower’s termination to the time that the court entered judgment.
Under the False Claims Act whistleblower protection law and Dodd-Frank anti-retaliation provision, a prevailing whistleblower is entitled to recover double back pay. In Mooney v. Americare, the court held that back pay is doubled before the court offsets the value of interim earnings (also known as mitigation).
Back pay can also include contracted severance pay to which he would be entitled in the event of discharge without cause when reinstatement was not appropriate. See Loftus v. Horizon Lines, Inc., ARB No. 16-082, ALJ No. 2014-SPA-004 (ARB May 24, 2018).
Front Pay in Lieu of Reinstatement in Whistleblower Retaliation Cases
Reinstatement is the “presumptive and preferred remedy,” but where pronounced animosity between the parties leads both of them to advocate against reinstatement, front pay may be an appropriate substitute. Front pay is designed to compensate the plaintiff for the time it would take to secure comparable employment. See, e.g., Hagman v. Washington Mutual Bank, Inc., ALJ Case No. 2005-SOX-00073, at 26–30 (ARB Dec. 19, 2006), appeal dismissed, ARB Case No. 07-039 (ARB May 23, 2007) (awarding $640,000 in front pay to a banker whose supervisor became verbally and physically threatening when the banker disclosed concerns about the short funding of construction loans).
Where a whistleblower demonstrates that he planned to continue working for the employer until he or she reached normal retirement age and demonstrates sufficient efforts to mitigate damages (find comparable employment), the whistleblower can been entitled to expected earnings to the date of retirement. For example in the Perez v. Progenics Pharmaceuticals SOX whistleblower case, the court awarded approximately $2.7 in front pay. That case is discussed in an article in Corporate Counsel titled How to Help a Whistleblower.
Front pay is an appropriate remedy in lieu of reinstatement in SOX whistleblower cases. See Jones v. SouthPeak Interactive Corp., 986 F. Supp. 2d 680 (E.D. Va. 2013), aff’d, 777 F.3d 658 (4th Cir. 2015). Andrea Jones worked at SouthPeak Interactive Corp. (“SouthPeak”) as its chief financial officer, and SouthPeak terminated her employment two days after she disclosed accounting irregularities to the SEC. Following a four-day trial, a jury found for Jones and awarded nearly $700,000 in damages. Jones then filed a motion seeking front pay in lieu of reinstatement and in addition to compensatory damages. Judge Payne awarded front pay, and noted the following:
Front pay also has been more precisely defined as “a lump sum … representing the discounted present value of the difference between the earnings [an employee] would have received in his old employment and the earnings he can be expected to receive in his present and future, and by hypothesis, inferior, employment.” McKnight v. Gen. Motors Corp., 908 F.2d 104, 116 (7th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991), partially superseded by Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. 1981 et seq.). If a plaintiff has been diverted onto a less profitable career path through the unlawful actions of his former employer, an award of front pay to compensate the plaintiff until such time as he can regain his former career track is not a windfall.
SouthPeak appealed Judge Payne’s decision. The DOL filed an amicus curiae brief arguing that front pay is an appropriate remedy under SOX, and the Fourth Circuit affirmed. See 777 F.3d at 663.
In calculating front pay, courts should apply the following guiding principles:
- “It is well settled that `the risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim.” Bartek v. Urban Redevelop ent Authority, 882 F.2d 739, 746 (3d Cir. 1989).
- The Court should “assume, absent evidence to the contrary, that the illegally discharged employee would have continued working for the employer until he or she reached normal retirement age.” See Perez v. Progenics Pharmaceuticals, Inc., 204 F. Supp. 3d 528 (S.D.N.Y. 2016).
Compensatory Damages in Whistleblower Retaliation Cases
The SOX whistleblower protection law and similar corporate whistleblower protection laws authorize the award of not only economic damages, but also “special damages” which includes damages for emotional distress, mental anguish, humiliation and injury to reputation. See, e.g., Lockheed Martin Corp. v. Admin. Rev. Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (upholding an award of “noneconomic compensatory damages” for “emotional pain and suffering, mental anguish, and humiliation”). As a federal judge held in Hanna v. WCI Communities, Inc., 348 F.Supp.2d 1332 (S.D.Fla.2004), a SOX whistleblower case, “[w]hen reputational injury caused by an employer’s unlawful discrimination diminishes a plaintiff’s future earnings capacity, [he] cannot be made whole without compensation for the lost future earnings [he] would have received absent the employer’s unlawful activity.”
“[A] plaintiff’s testimony, standing alone, can support an award of compensatory damages, [but] the evidence of the emotional distress must be demonstrable, genuine, and adequately explained.” Price v. City of Charlotte, N.C., 93 F.3d 1241, 1251-52 (4th Cir. 1996). The whistleblower’s testimony “must indicate with specificity how the plaintiff’s alleged distress manifested itself.” Bryant v. Aiken Reg’l Med. Ctrs., 333 F.3d 536, 547 (4th Cir. 2003) (internal quotation marks and alterations omitted).
Attorney Fees and Litigation Costs in Whistleblower Retaliation Cases
Legal fees and costs in whistleblower retaliation cases can also be significant. In the Wadler v. Bio Rad SOX whistleblower retaliation case, Bio-Rad stipulated to $3M in attorney fees for the whistleblower’s counsel. In March 2020, Magistrate Judge Michael E. Hegarty awarded $2,719,225.50 in lodestar fees on the whistleblower’s recovery of $620,105.00 in an NDAA whistleblower retaliation case. See Cejka v. Vectrus Systems Corp., 2019 WL 8198090 (D. Colo. Feb. 21, 2019).
Litigating Sarbanes-Oxley Whistleblower Cases
A Sarbanes-Oxley whistleblower retaliation complaint must be filed initially with OSHA. The complainant has the option to remove a SOX whistleblower claim to federal court once the complaint has been pending at the Department of Labor for 180 days.
180-Day Sarbanes-Oxley Statute of Limitations
The deadline for a SOX whistleblower to file a complaint is 180 days after the whistleblower first experiences or becomes aware of the unlawful retaliation.i The clock starts ticking once “the discriminatory decision has been both made and communicated to the complainant.”ii
The 180-day clock starts to run on the date of each discrete retaliatory act, e.g., the date on which the whistleblower is informed of a demotion, suspension, termination, change in job duties, etc. However, in an action alleging a hostile work environment, retaliatory acts outside the statute of limitations period are actionable where there is an ongoing hostile work environment and at least one of the acts occurred within the 180-day statute of limitations.
A SOX retaliation complaint is considered filed once the Department of Labor receives it. A complaint sent by mail, however, is considered filed on the date of its postmark.
The 180 day period is not jurisdictional and may be equitably tolled when (1) the respondent actively misled the complainant respecting the cause of action, (2) extraordinary circumstances prevented the complainant from asserting his rights, (3) complainant raised the precise statutory claim in issue but mistakenly did so in the wrong forum, or (4) the respondent did not actively mislead the complainant, but instead through its acts or omissions lulled the complainant into foregoing prompt action to vindicate his rights.
“[A]lthough recovery for any action outside the 180-day period is barred, an employee may still use ‘the prior acts as background evidence in support of a timely claim.’” Roop v. Kan. City S. Ry., No. CIV-16-413-SPS, 2017 U.S. Dist. LEXIS 177646 (E.D. Okla. Oct. 26, 2017) citing Dunn v. BNSF Ry. Co., 2017 U.S. Dist. LEXIS 137109, 2017 WL 3670559, at *8 (W.D. Wash. Aug. 25, 2017), quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 110, 113 (2002).
i i 18 U.S.C. §1514A(b)(2)(D).
i ii 29 CFR § 1980.103(d).
Individual Liability Under SOX Whistleblower Protection Law
A whistleblower can bring a SOX retaliation claim against individuals who have the functional ability to retaliate against the whistleblower, and are aware of the whistleblower’s protected conduct (or influenced by a person with knowledge of the protected conduct).
The Fourth Circuit and a California district court have held that directors may be held individually liable under SOX as agents of a publicly-traded company. See Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 675 (4th Cir.2015); Wadler v. Bio-Rad Labs, Inc., No. 15-cv-02356-JCS, 2015 WL 6438670 (N.D. Cal. Oct. 23, 2015). But in Zornoa v. Terraform Global, Inc. of the United States Court for the Southern District of New York held that corporate directors are not liable under SOX because they are not understood to function as agents and the statute omits directors from its list of potentially liable persons.
OSHA Enforcement of Sarbanes-Oxley Whistleblower Law
The U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) administers the anti-retaliation provision of SOX. A SOX whistleblower claim must be filed initially with OSHA. OSHA will then investigate the complaint and may order preliminary reinstatement of the whistleblowers if it finds “reasonable cause” to believe that retaliation occurred.
OSHA finds “reasonable cause” when it determines that a reasonable judge could rule for the whistleblower. And a reasonable judge could rule so only where there is evidence supporting each element of a SOX retaliation claim. Generally, though, less evidence is required to establish “reasonable cause” at this stage than to prevail at trial. “OSHA’s responsibility to determine whether there is reasonable cause to believe a violation occurred is greater than the complainant’s initial burden to demonstrate a prima facie allegation that is enough to trigger the investigation.”[i] But OSHA need not “resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.” In practice, however, OSHA rules for SOX complainants only in the strongest cases, which is due in part to the burden that OSHA must bear to order preliminary reinstatement of a whistleblower.
- in providing information to the Commission in accordance with this section;
- in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or
- in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. [§§] 7201 et seq.), this chapter, including section 78j-1(m) of this title, section 1513(e) of Title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission.
15 U.S.C. § 78u-6(h)(1)(A). A prevailing whistleblower can secure reinstatement and recover double back pay and compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.
In February 2018, the Supreme Court held in Somers that the anti-retaliation provision of the Dodd-Frank Act projects a whistleblower only where the whistleblower has disclosed a potential securities law violation to the SEC. Somers also clarified that once an employee has provided information to the SEC, subsequent internal disclosures are protected absent proof that the employer had knowledge of the disclosure to the SEC.
Post Somers, the SEC has indicated that it will continue to prioritize whistleblower protection as a key tool to encourage whistleblowers to come forward. In a June 28, 2018 public statement at the open meeting announcing the Proposed Rulemaking, Chair Clayton stated: “Many have asked whether the SEC will continue to enforce the anti-retaliation provisions of Dodd-Frank. Let me be clear: retaliation protections are a key component of the whistleblower program, and we will bring charges against companies or individuals who violate the anti-retaliation protections when appropriate.” Statement at Open Meeting on Amendments to the Commission’s Whistleblower Program Rules.
SEC Enforcement of Dodd-Frank SEC Whistleblower Retaliation Provision
The SEC has taken enforcement action for retaliation against a whistleblower.
- On September 29, 2016, the SEC ordered International Game Technology (“IGT”) to pay a $500,000 penalty for terminating the employment of a whistleblower because he reported to senior management and to the SEC that the company’s financial statements might be distorted. See Exchange Act Release No. 78991 (Sept. 29, 2016). During an internal investigation into the whistleblower’s allegations, IGT removed him from opportunities that were integral to his ability to perform his job successfully. IGT then fired the whistleblower the same day as the internal investigation concluded that IGT’s cost-accounting model was appropriate and did not cause its financial statements to be distorted. The whistleblower was protected under the SEC whistleblower program, despite being mistaken, because he reasonably believed that IGT’s cost-accounting model constituted a violation of federal securities laws.
The action against IGT was the SEC’s first standalone retaliation case. However, it is consistent with a 2014 enforcement action that indicated, for the first time, that retaliating against a whistleblower can result not only in a private suit brought by the whistleblower but also in a unilateral SEC enforcement action.
- On June 16, 2014, the SEC announced that it was taking enforcement action against Paradigm Capital Management, Inc. (“Paradigm”), a hedge fund advisory firm, for engaging in prohibited principal transactions and for retaliating against the whistleblower who disclosed the unlawful trading activity to the SEC. See Exchange Act Release No. 72393 (June 16, 2014). This was the first case in which the SEC exercised its authority under Dodd-Frank to bring enforcement actions based on retaliation against whistleblowers.
- According to the order, Paradigm retaliated against its head trader for disclosing, internally and to the SEC, prohibited principal transactions with an affiliated broker-dealer while trading on behalf of a hedge fund client. The transactions were a tax-avoidance strategy under which realized losses were used to offset the hedge fund’s realized gains.
- When Paradigm learned that the head trader had disclosed the unlawful principal transactions to the SEC, it retaliated against him by removing him from his position as head trader, changing his job duties, placing him on administrative leave, and permitting him to return from administrative leave only in a compliance capacity, not as head trader. The whistleblower ultimately resigned his position.
- Paradigm settled the SEC charges by consenting to the entry of an order finding that it violated the anti-retaliation provision of Dodd-Frank and committed other securities law violations; agreeing to pay more than $1 million to shareholders and to hire a compliance consultant to overhaul their internal procedures; and entering into a cease-and-desist order.
The SEC’s press release accompanying the order includes the following statement by Enforcement Director Andrew Ceresney: “Those who might consider punishing whistleblowers should realize that such retaliation, in any form, is unacceptable.” The Paradigm enforcement action suggests that whistleblower retaliation can result in liability far beyond the damages that a whistleblower can obtain in a retaliation action and that retaliation can invite or heighten SEC scrutiny.
Differences between SOX and Dodd-Frank Acts
This table identifies some of the major differences between the anti-retaliation provisions of SOX and Dodd-Frank. To maximize the potential recovery, a whistleblower could initially bring a SOX claim at OSHA and subsequently remove it to federal court and also bring a Dodd-Frank claim. Doing so could enable the whistleblower to recover double back pay and uncapped special damages.
|Scope of Coverage||Any company with a class of securities registered under section 12 of the Securities Exchange Act of 1934, or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934, including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization, or any officer, employee, contractor, subcontractor, or agent of such company.||Any employer|
|Protection for internal whistleblowing||Yes||Internal whistleblowing protected only if individual has also reported a possible securities violation to the SEC|
|Protection for whistleblowing to SEC||Yes||Yes|
|Statute of Limitations||180 days||6 years|
|Administrative Exhaustion||Must file initially with OSHA||None|
|Arbitration||Exempt from mandatory arbitration||Not exempt|
|Back pay||Ordinary back pay||Double back pay|
|Special damages for emotional distress and reputational harm||Available||Not available|
Four advantages to bringing a SOX claim in addition to a Dodd-Frank claim:
- Uncapped special damages: The Dodd-Frank Act authorizes economic damages and equitable relief but does not authorize non-economic damages. In contrast, SOX authorizes uncapped “special damages” for emotional distress and reputational harm.
- Exemption from mandatory arbitration: SOX provides an unequivocal exemption from mandatory arbitration, but Dodd-Frank claims are subject to arbitration.
- Preliminary reinstatement: If an OSHA investigation concludes that an employer violated the whistleblower protection provision of SOX, OSHA can order the employer to reinstate the whistleblower.
- Favorable causation standard: A far more generous burden of proof (“contributing factor” causation under SOX, rather than “but for” causation under Dodd-Frank).
Four advantages to bringing a Dodd-Frank claim in addition to a SOX claim:
- Double back pay: Dodd-Frank authorizes an award of double back pay (double lost wages) plus interest, whereas SOX authorizes ordinary back pay with interest along with other damages. Both statutes authorize reinstatement and attorney fees.
- Longer statute of limitations: Whereas the statute of limitations for a SOX retaliation claim is just 180 days, the statute of limitations for a Dodd-Frank retaliation claim is six to ten years.
- Broader scope of coverage: SOX whistleblower protection applies primarily to employees of public companies and contractors of public companies. The Dodd-Frank prohibition against whistleblower retaliation applies to “any employer,” not just public companies.
- No administrative exhaustion: In contrast to SOX, Dodd-Frank permits a whistleblower to sue a current or former employer directly in federal district court without first exhausting administrative remedies at DOL.
Section 1985 Haddle Remedy for Conspiracy to Interfere with Civil Rights of SEC Whistleblowers
At-will employees that suffer retaliation for participating in a federal court proceeding can bring claims under 42 U.S.C. § 1985(2). This civil rights statute prohibits conspiracies to intimidate or retaliate against parties, witnesses or jurors testifying or participating in federal court proceedings. Under 42 U.S.C. § 1985(2), a victim of intimidation or retaliation who suffers injury to “his person or property” can recover damages against the perpetrators of the conspiracy. The Supreme Court held in Haddle v. Garrison, 525 U.S. 121 (1998) that a conspiracy to terminate an employee’s at-will employment constitutes injury to person or property and is therefore actionable under 42 U.S.C. § 1985(2).
RICO Prohibition Against SEC Whistleblower Retaliation
Section 1107 of SOX, 18 U.S.C. § 1513(e), criminalizes whistleblower retaliation. It provides:
- Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense, shall be fined under this title, imprisoned not more than 10 years, or both.
As Section 1513(e) is a predicate offense under the Racketeer Influenced and Corrupt Organizations Act (RICO), there is a private right of action to remedy a violation of 1513(e). Protected conduct includes reporting a possible criminal securities law violation to the SEC. RICO is a potent remedy because it authorizes treble damages. 18 U.S.C. § 1964(c).
In DeGuelle v. Camilli, 664 F.3d 192 (7th Cir. 2011), DeGuelle, a tax employee of S.C. Johnson & Son, Inc. (“SCJ”), was terminated after reporting an alleged tax scheme to his employer and federal agencies.
- Over an eight year period beginning in 2001, DeGuelle relayed a series of concerns regarding SCJ tax practices to Daniel Wenzel, Global Tax Counsel of SCJ. Wenzel directed DeGuelle to alter or destroy documents to avoid detection of a tax issue that DeGuelle brought to Wenzel also instructed DeGuelle and another employee to fabricate a business transaction in order to exploit accounting rules for the company’s benefit. DeGuelle finally met with Camilli, Director of Human Resources, to discuss that Wenzel was creating a hostile work environment. DeGuelle also spoke with Gayle Kosterman who informed DeGuelle that the company hired a law firm to investigate his tax fraud allegations and DeGuelle spoke with attorneys from the firm.
- Wenzel told DeGuelle to keep his complaints about the tax department within the department, instead of taking them to human resources. Wenzel made disparaging comments towards DeGuelle in front of other employees and acted aggressively towards him. DeGuelle received a negative performance review, which was conducted off-cycle and at odds with the award he received earlier that year recognizing his stellar performance.
- On September 10, 2008, DeGuelle and Camilli met again to discuss DeGuelle’s safety concerns relating to Wenzel’s behavior. Later that month, DeGuelle and Wenzel had another verbal altercation and DeGuelle received a negative review from Wenzel. DeGuelle spoke with Camilli alleging that the negative review was in retaliation for his whistleblowing, which she said she would investigate.
- In November, DeGuelle contacted Camilli in writing to inform her that if the company did not take action, he would contact state or federal authorities regarding the retaliation.
- On December 18, 2008 DeGuelle was informed that the negative review was retaliatory and would be revoked. DeGuelle was directed to drop his tax fraud complaints, but DeGuelle said he would file a whistleblower complaint with the Department of Labor. The company offered a salary increase and offered to pay part of his attorney fees if he signed a confidentiality agreement and release of claims.
- Instead, on December 18, 2008, DeGuelle filed a complaint under SOX with the Department of Labor, attaching tax documents, financial statements and internal communications to his complaint.
- In January 2009, DeGuelle met with Kosterman to withdraw his salary request, fearing that it could be viewed as an attempt to profit from the company’s tax fraud.
- On February 17, 2009, the DOL determined that SCJ was not a covered entity under SOX. Id. at 197.
- On March 10, 2009 SCJ sent another fraudulent tax return to the IRS.
- On March 19, 2009 DeGuelle sent a memorandum detailing his concerns to SCJ counsel, after which Kosterman offered him a year’s salary if he were to resign and signed a confidentiality agreement and released all claims.
- On April 9, 2009, SCJ began investigating DeGuelle for disclosing confidential company documents. DeGuelle met with Camilli and other investigators and denied disclosing documents, but admitted that he attached them to the DOL complaint, asserting that Camilli was aware of those disclosures.
- After that meeting, Kosterman and another employee placed DeGuelle on administrative leave, ultimately terminating him for taking and disclosing confidential business documents. SCJ filed suit in Racine County Circuit court seeking recovery of SCJ property and confidential information and for breach of contract and conversion. Following the suit, SCJ made defamatory statements about DeGuelle in the media.
- DeGuelle then filed suit in federal court alleging multiple claims, including RICO violations. Id. at 198.
- The district court dismissed the RICO claims, holding that the tax fraud and retaliation are unrelated offenses and thus do not form a pattern of racketeering activity. The district court also reasoned that since by the time the retaliation occurred, the government was already aware of alleged tax fraud, the predicate offenses were not the proximate cause of DeGuelle’s injuries.
- The Seventh Circuit Court of Appeals reversed, holding that “[r]etaliatory acts are inherently connected to the underlying wrongdoing exposed by the whistleblower… Accordingly, we believe a relationship can exist between § 1513(e) predicate acts and predicate acts involving the underlying cause for such retaliation.” Id at 201. The court determined that despite SCJ officials’ attempts to investigate DeGuelle’s concerns and protect him from retaliation, SCJ can still be held liable for retaliatory termination. The court also noted that a whistleblower does not have to show that the same officials participated in both the crime and the retaliation.
Following DeGuelle, in Simkus v. United Airlines, No. 11 C 2165, 2012 WL 3133603, (N.D. Ill. July 31, 2012), Simkus brought a suit against United Airlines under RICO.
- Simkus alleged two predicate acts in his civil RICO suit that occurred within a ten year period, mail and wire fraud related to United providing Simkus with incorrect information regarding his stock allocation in 2006 and retaliation against Simkus in violation of SOX for reporting asbestos violations to the Occupational Health and Safety Administration (OSHA). The court found that these two acts failed the “continuity plus relationship” test.
- Unlike the alleged tax fraud and retaliation committed by SCJ, there was no relationship between the two acts alleged by Simkus. Id. at *3-4.
The Seventh Circuit’s holding in DeGuelle illustrates how a whistleblower who has been retaliated against can bring a RICO action against an employer relying upon Section 1107 as a predicate offense.
 This case was ultimately dismissed on remand and again on appeal, due to collateral estoppel relating to the judgement in the state court case filed by SCJ, in which DeGuelle represented himself pro se, failing to include affidavits in his response to SCJ’s motion for summary judgment. See DeGuelle v. Camlli 724 F. 3d 9ss (7th Cir. August 1, 2013).
Breach of Contract Claim
An employer’s breach of an anti-retaliation policy in a Code of Ethics can potentially give rise to a breach of contract claim, although the law varies by state.
For example, in 2015, a federal district court held that an employer’s anti-retaliation policy created legally enforceable rights. See Leyden v. Am. Accreditation Healthcare Comm’n, 83 F. Supp. 3d 241, 247–48 (D.D.C. 2015). In Leyden, the trial court held that the plaintiff had a valid claim based on the employer’s alleged violation of its internal anti-retaliation policy. The court relied on law construing whether employee handbooks created implied contractual rights.
- In Leyden, the plaintiff was the Chief Accreditation Officer at the American Accreditation Healthcare Commission, a nonprofit offering accreditation and certification programs to healthcare entities. The defendant had an anti-retaliation policy, which stated: “No URAC employee who in good faith reports any Improper Activities in accordance with this policy shall suffer, and shall be protected from threats of harassment, retaliation, discharge, or other types of discrimination.” The plaintiff voiced concerns that new management was mistreating female executives and that two board members were engaged in conduct that she thought jeopardized the organization’s independence. The defendant then terminated the plaintiff’s employment.
- The defendant moved to dismiss the complaint, arguing in relevant part that the anti-retaliation policy did not create contractual rights. Even if it did, the defendant contended, it had disclaimed any such rights in its employee handbook.
- However, the court held that the anti-retaliation policy created an implied contract. The court began by reviewing Strass v. Kaiser Foundation Health Plan, a case holding that an employee handbook created an implied contract. Id. at 247 (citing Strass v. Kaiser Found. Health Plan, 744 A.2d 1000 (D.C. 2000)). The court discussed how a manual could create rights, and how an employer could effectively disclaim those rights. The court also rejected the defendant’s argument about the disclaimer, noting that a disclaimer that was “rationally at odds” with the other language in the document may not cut off an implied contract.
In finding an implied contract, the court focused on the employer’s invitation to report “Improper Activities” internally and on the language of the anti-retaliation policy. The court also concluded that the employer’s disclaimer, which was found in a different document, was rationally at odds with the anti-retaliation policy. The reasoning in Leyden may be persuasive in other jurisdictions and provide an important remedy to whistleblowers that are not covered under federal or state whistleblower protection statutes.
Defense Contractor Whistleblower Protection Act
In an article titled “New law drove whistleblower complaints against DOD contractors up,” Jill Aitoro reports that the NDAA whistleblower protection provisions, which became effective one year ago, have generated a substantial increase in whistleblower complaints to the Department of Defense Office of Inspector General. According to the article, “the rate of complaints from Defense Department whistleblowers increased from about four to six a month as of August 2013 to more than 200 since Jan. 1.” In addition, the article reports that whistleblower disclosures about DOD contractor fraud have resulted in several substantial recoveries for the government.
Sections 827 and 828 of the NDAA provide robust whistleblower protection to employees of most government contractors and grantees. Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:
- gross mismanagement of a Federal contract or grant;
- a gross waste of Federal funds;
- an abuse of authority relating to a Federal contract or grant; or
- a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.
To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Differences Between False Claims Act Whistleblower Protection and NDAA/Defense Contractor Whistleblower Protection
Whistleblowers disclosing DoD contractor fraud can pursue claims both under the FCA and the NDAA. The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:
|Topic Area||False Claims Act Whistleblower Protection||NDAA/Defense Contractor Whistleblower Protection Act|
|Coverage||Employee, contractor, or agent of federal contractor||Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor|
|Scope of Protected Conduct (protected whistleblowing)||Protects lawful acts done by the employee, contractor, agent, or associated others (1) in furtherance of an action under the FCA or (2) other efforts to stop 1 or more violations||Protects disclosures to employer or the government concerning:
|Damages||Double back pay, reinstatement, uncapped special damages (emotional distress and harm to reputation), attorney’s fees||Back pay, reinstatement, uncapped special damages, attorney’s fees|
|Causation Standard||"But for" causation||Contributing factor causation|
|Administrative Exhaustion||No exhaustion requirement; file directly in federal court||Must file initially at OIG and after 210 days, can remove claim to federal court|
|Statute of Limitations||3 years||3 years|
Defense Contractor Whistleblower: Reporting Fraud Internally or Directly to the Government
There are many factors to consider in deciding whether to blow the whistle directly to the government in the form of a qui tam whistleblower lawsuit and which laws offer the best remedy to combat retaliation. It is important to assess your options at an early stage to avoid waiving claims or rights. For example, entering into a global release or global waiver with your employer to resolve a retaliation claim could waive your right to recover a qui tam whistleblower award.
Proving NDAA Whistleblower Retaliation
The burden of proof and causation standard in NDAA whistleblower cases is very favorable to employees. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.
Remedies for Prevailing NDAA Whistleblowers
Remedies for prevailing whistleblowers in NDAA retaliation actions include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.
Procedures for Filing an NDAA Whistleblower Retaliation Claim
An NDAA retaliation claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statute of limitations is three years after the date of the reprisal. The OIG will investigate the complaint and make recommendations to the agency head. If the agency head fails to provide requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.
Taxpayer First Act
The purpose of the TFA IRS whistleblower protection law is to encourage whistleblowers with high-value inside information about tax noncompliance to come forward.
See this helpful article in Accounting Today: Whistleblower protections for accountants and tax professionals bolstered by new law.
Section 1405(b) of the TFA prohibits any “employer, officer, employee, contractor, subcontractor, or agent” of an employer from retaliating against a whistleblower.
Protected Whistleblowing Under the Taxpayer First Act
The TFA protects a broad range of disclosures about potential violations of IRS rules or tax fraud. It protects not only disclosures to the IRS, but also internal disclosures, including an employee’s disclosure to a supervisor or “any other person working for the employer who has the authority to investigate, discover, or terminate misconduct.” In particular, protected conduct includes:
- 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.
TFA whistleblower protection is not limited to disclosures of actual tax fraud. Instead, DOL and federal court precedent construing similar whistleblower protection laws protect a whistleblower’s reasonable but mistaken belief that the conduct complained of constituted a violation of relevant law. The whistleblower, however, must demonstrate that they had an objectively reasonable belief, which is assessed based on the knowledge available to a reasonable person in the circumstances with the employee’s training and experience.
Prohibited Retaliation Against Tax Fraud Whistleblowers
The TFA prohibits a wide range of retaliatory personnel actions, 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 in a TFA Whistleblower Retaliation Case
Section 1405(b) of the TFA 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 DOL ARB 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 in a Tax Fraud Whistleblower Retaliation Case
A prevailing TFA whistleblower is entitled to make-whole relief, which includes:
- double back pay with interest;
- uncapped “special damages,” which courts have construed as encompassing damages for emotional distress and reputational harm; and
- attorney fees, litigation costs, and expert witness fees.
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.
(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:
- 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.
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 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:
- 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:
- 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 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.”
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 Federal Rail Safety Act (FRSA) outline when an employer’s investigation into an employee’s conduct may be considered actionable retaliation.
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:
- reduction in salary
- failure to hire
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 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:
- 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:
- reduction in pay
- failure to promote
- failure to hire
- diminution in job duties
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
- injunctive relief
- 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 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 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 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 GAO Report about criminal cartel enforcement.