Evidentiary Issues in Employment and Whistleblower Cases Archives

How do I prove employment discrimination occurred?

Typically, there are two ways in which you can prove an employment discrimination case. The first is with direct evidence. These types of … Continued

How can a whistleblower prove retaliation?

Circumstantial Evidence Proving Retaliation Circumstantial evidence of retaliation includes: temporal proximity; indications of pretext; inconsistent application of an employer’s policies; an employer’s shifting explanations for … Continued

Do formal rules of evidence apply in Sarbanes-Oxley whistleblower trials at the Department of Labor?

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]

Is retaliation that occurred outside of the statute of limitations period relevant evidence of retaliation?

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.