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Protecting Whistleblowers since 1977

Major Win For Corporate Whistleblowers

March 24, 2015
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Ominous Dissent Underscores Fragility of Rights

(WASHINGTON) – Yesterday, in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034, the Department of Labor’s Administrative Review Board posted a decision providing a major victory for employee rights that upheld and clarified employee-friendly burdens of proof created by the Whistleblower Protection Act (WPA) and used in every corporate whistleblower law enacted since 1989.

Fairly allocated and administered burdens of proof are essential for whistleblowers to have a fair chance of defending their rights. They establish the rules of the game for who has to present how much evidence to win a lawsuit. Since passage of the WPA in 1989, federal employees have been able to meet their burden for a prima facie case by establishing with a preponderance of the evidence that whistleblowing was relevant, or a “contributing factor,” to alleged retaliation. The employer could still prevail under its burden of proof by presenting “clear and convincing evidence” that it would have acted for legitimate, independent reasons even if the employee had not blown the whistle. Following the passage of the WPA, most whistleblower laws utilized the “contributing factor” – “clear and convincing evidence” shifting burden standards.   

The showdown occurred after a three judge panel ruled for GAP client Edna Fordham that only evidence of retaliation is relevant for the employee’s burden. Any independent claims or attacks unrelated to free speech and disclosures must be presented by the employer, and proved by clear and convincing evidence. Fordham (Oct. 9, 2014). After a strongly pitched dissent by Judge Luis Corchado, however, the full five-member board agreed to reconsider the issue in Powers

GAP, joined by numerous other public interest groups such as the Project On Government Oversight and the National Whistleblowers Center, defended the modern burdens of proof in friend of the court, or amicus curiae briefs. On January 14, 2015, GAP Legal Director Tom Devine and other whistleblower advocates participated in oral argument in the Powers case. These efforts led to yesterday’s favorable decision by the ARB.

The attack on modern whistleblower law has failed, for now. A 3-2 majority decision  held that the employee only has to prove a relevant connection between whistleblowing and alleged harassment, not rebut the sometimes unlimited menu of personal attacks on the employee that would independently justify termination. As Tom Devine explained,

“Justice has prevailed for whistleblowers, but just barely. The majority preserved employee friendly burdens of proof that give employees a fighting chance to defend themselves when they defend the public. Whistleblowers only have to present evidence on retaliation, and prove their case by a preponderance of the evidence. The employer must prove its smears and other independent attacks on the whistleblower by clear and convincing evidence. The congressional mandate has withstood an activist, pro-corporate judicial attack.

“But this ruling also exposed the fragility of whistleblower rights. Two members, including President Obama’s ARB Chairman, voted to virtually eliminate any burdens for the employer to prove innocent excuse. Instead, it would force whistleblower to disprove employer pretexts and read the employer’s mind on its motives to act—a virtually impossible challenge. If the minority had prevailed, it would have canceled the basic rules for every whistleblower law passed over the last 25 years and regressed whistleblower rights to the legal Stone Age before 1968.” 

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.

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