This site respects your privacy. GAP will not record your IP address or browser information. A detailed privacy statement can be found here.
Protecting Whistleblowers since 1977

In Palmer v. Canadian National Railway, Major Relief for Whistleblowers

Tom Devine, October 14, 2016

On Friday, September 30 the Department of Labor Administrative Review Board (ARB) issued its decision in Kenneth Palmer v. Canadian National Railway/Illinois Central Railroad Company. The case was widely viewed as a showdown for the survival of the modern burdens of proof that have governed all whistleblower statutes since passage of the 1989 Whistleblower Protection Act for federal workers.

Specifically, the decision controls the rules for 13 corporate whistleblower laws passed since then, which are enforced by the Department of Labor. Under the two-part test that Congress created in all those laws, the employee meets his or her burden for a prima facie case by demonstrating that whistleblowing was relevant as a “contributing factor” by affecting the outcome of a job action “in any way,” no matter how small.

Once an employee passes the first stage of the test, the burden shifts to the employer in the second stage to prove by “clear and convincing evidence” that it would have taken the same action for innocent reasons independent of whistleblowing. A faction within the ARB had persistently advocated that whistleblowers should have to disprove the employer’s innocent explanations in order to meet the preliminary “contributing factor” test, instead of making the employer prove them by clear and convincing evidence. That result would have set back whistleblower rights over four decades.  

Although the result is messy, the modern whistleblower protection standards survived. For whistleblowers, the bad news is that the Board allowed non-retaliatory reasons to pollute the “contributing factor” record. Administrative law judges are permitted to “consider” that evidence.

But the good news is that the alleged innocent reasons at that stage can neither affect the outcome nor change the burdens of proof, as detailed in the decision’s specific conclusions:

1) The low prima facie bar for the whistleblower’s burden is cleanly reaffirmed: if protected activity affected the outcome in any way, the employee passes the contributing factor test.

2) The employer’s non-retaliatory reasons can’t be weighed against the evidence used to establish that whistleblowing affected the decision in any way.

3) Whistleblowers do not have to disprove pretext.

4) A contributing factor can be proved both with knowledge-timing and circumstantial evidence.

5) Whistleblowers automatically prevail on contributing factor if there is a “mixed motive” case involving both lawful and unlawful grounds to act against an employee.

6) Unless a whistleblower fails to present adequate evidence for the prima facie case, the only way an employer’s non-retaliatory reasons can defeat a claim is under the clear and convincing evidence standard as part of its affirmative defense.

7) The high clear and convincing evidence affirmative defense standard for employers was cleanly reaffirmed for at least 70% of evidence.

8) If a whistleblower disproves all non-retaliatory reasons by an employer under the contributing factor test it ends the case, because it then will be impossible to meet the clear and convincing evidence test. 

The decision threatens to create confusion by allowing administrative law judges to “consider” evidence in stage one of the two-part test that cannot affect whether an employee has met his or her burden for that stage.

On balance, however, the result is a major relief for whistleblower rights advocates because it reaffirms all the legal standards and burdens as enacted by Congress. The result also is a vindication for three Senate and House leaders of their respective Whistleblower Caucuses – Senator Charles Grassley (R-IA), Senator Ron Wyden (D-OR) and Representative Jackie Speier (D-CA), who filed a congressional friend of the court brief with the Labor Department. While GAP served as counsel for their brief, this blog is presented only on behalf of GAP and does not represent their views.