A bipartisan group of senators commended the Department of Labor, Administrative Review Board’s (ARB) interpretation of federal whistleblower protections provisions, clarifying the statutory burdens of proof in whistleblower cases. In two recent decisions, Fordham v. Fannie Mae, ARB No. 12-061 (Oct. 9, 2014) and Powers v. Union Pacific Railroad, ARB No. 13-034 (Mar. 20, 2105), the ARB found that employees should be allowed to have a fair chance to make their case before having to rebut an employer’s rationale for taking action against the employee.
In a letter to the Labor Secretary Thomas Perez, the senators wrote that the ARB’s interpretation of the requisite standards of proof for both the employee and the employer in both decisions are consistent with the intent of Congress.
Stephen M. Kohn, Executive Director of the National Whistleblower Center and partner at Kohn, Kohn & Colapinto, LLP, argued the burden of proof issue on behalf of the whistleblower in the Powers case. At the time of the ruling Mr. Kohn stated, “Congress recognized the incredible benefits obtained by society by encouraging employees to blow the whistle on fraud. They also understood that the law was stacked against the whistleblower that usually faced high-powered corporate lawyers, with unlimited budgets. The ruling helps to even the playing field and give whistleblowers a fair shot at winning their cases.”
“A thorough and careful reading of the relevant legislative history amply demonstrates that Congress intended this bifurcated analysis in whistleblower cases to address patterns of retaliation in various industries and agencies and ultimately to ‘facilitate relief’ for whistleblowers,” the senators wrote.
Cosigners of the letter include senators Chuck Grassley of Iowa, Ron Wyden of Oregon, Thom Tillis of North Carolina, Mark Kirk of Illinois, Tammy Baldwin of Wisconsin and Claire McCaskill of Missouri.
A signed copy of the letter is available here.