Jason Zuckerman and Dallas Hammer
Zuckerman Law, a Washington DC law firm representing whistleblowers nationwide, filed an amici curiae brief on behalf of the National Employment Lawyers Association, Truckers Justice Center, Teamsters for a Democratic Union, and Teamsters Local 89, urging the ARB to adopt a burden-shifting framework that is consistent with the elevated burden of proof that Congress imposed on employers under the Sarbanes-Oxley Act and similar whistleblower protection laws. The brief calls on the ARB not to weaken whistleblower protection laws by requiring complainants to prove pretext, a requirement that would be inconsistent with well-established ARB precedent and the plain meaning of the whistleblower protection laws that the DOL enforces.
Many of the whistleblower protection laws enforced by DOL require an employee to show by a preponderance of the evidence that her protected activity was a contributing factor in the employer’s decision to take an adverse employment action. As a general rule when determining whether an employee has met this burden, an ALJ should not consider evidence the employer offers to show that the protected activity played no role in the decision. The employer can prevail with such evidence, but the employer bears the burden of establishing that assertion by clear and convincing evidence, a much more demanding standard than the preponderance of the evidence standard applicable the employee’s contributing factor showing.
The Federal Railroad Safety Act (FRSA), SOX, and other whistleblower protection laws enforced by DOL place the burden on the employer to prove by clear and convincing evidence that it would have taken the same action absent protected activity. Evidence that shows the employer would have taken the same action absent the protected activity necessarily includes evidence that protected activity had no role in an adverse action. Considering an employer’s evidence on causation when deciding the contributing factor issue under the preponderance of the evidence standard would allow an employer to prevail with its evidence of causation without meeting the clear and convincing standard the statute applies to such evidence. This in turn would eviscerate the section of the FRSA that provides an employer can escape liability by proving it would take the same action by clear and convincing evidence. The provision would be left with no independent purpose, and it would deprive the statute of a consistent regulatory scheme. In contrast, holding an employer’s causation evidence to the clear and convincing standard would harmonize the statutory provisions by producing an analysis of causation that bifurcates the consideration of the parties’ causation evidence.
Further, considering the employer’s evidence on causation when determining the contributing factor issue would contradict the low bar established by the contributing factor standard itself. Under the contributing factor standard, an employee can prevail if his protected activity had any effect on the employer’s decision to take an adverse action. An employee can prevail under the standard even if protected activity is merely one among several causes for the adverse action. Protected activity need not be even a substantial or motiving factor. Because of this, an employee need not prove pretext or retaliatory motive to prevail on a claim of whistleblower retaliation under the FRSA. However, if an employer’s evidence that it took the adverse action only for legitimate reasons is considered when deciding the contributing factor issue, an employee would be required to show that the employer’s proffered reasons are untrue, which is the definition of pretext.
Additionally, the legislative history of the FRSA’s whistleblower protection provisions shows that Congress intended to apply the clear and convincing evidence standard to an employer’s evidence on causation. In enacting and amending the FRSA, Congress was trying to address persistent safety problems in the nation’s railways. More specifically, Congress wanted to protect employees who reported safety issues because of many reports that such whistleblowers suffered reprisal. Congress acted on its desire to strengthen the FRSA by incorporating the standards from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century at 49 U.S.C. § 42121 (2000) (“AIR 21”) into the FRSA’s whistleblower-protection provisions. AIR 21’s standards are based on an explicit desire to make it easier for an employee to prove retaliation and harder for an employer to escape liability. Congress deliberately calibrated the AIR 21’s standards to bifurcate the causation issue and apply different burdens of proof on the parties’ evidence of causation. In doing so, it has made certain potentially relevant evidence legally distinguishable, so that it should not be considered during the determination of the contributing-factor issue.
The ARB has scheduled oral argument on this important issue on August 24, 2016. For more information on this issue, see Zuckerman Law’s summary of the ARB’s Powers decision.