Proving Whistleblower Retaliation and “Contributing Factor” Causation The Department of Labor Administrative Review Board’s ruling in Palmer v. Canadian National Railway, ARB No. 16-035, ALJ … Continued
Formal rules of evidence do not apply in SOX whistleblower cases litigated before a DOL ALJ. Evidentiary rules substantially similar to the Federal Rules of Evidence, however, apply.[i] The Office of ALJ, within the Department of Labor, has adopted those rules to ensure that the most probative evidence is produced.[ii] Evidence that is immaterial, irrelevant, or unduly repetitious may be excluded.[iii]
Discrete conduct occurring outside the statute of limitations can be offered as circumstantial evidence of retaliation. For example, if a supervisor threatens to terminate the employment of a whistleblower if the whistleblower raises additional compliance concerns and the supervisor ultimately carries out the threat, the threat itself is relevant to prove retaliation even if it was made outside of the statute of limitations period.