Board’s Narrow Ruling Highlights Fragility of Whistleblower Rights

Corporate whistleblowers won a major victory for employee rights on Monday in a case heard by the Department of Labor’s Administrative Review Board. The ruling in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034 upheld and clarified employee-friendly burdens of proof created by the Whistleblower Protection Act (WPA) 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.

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.”