DOL’s Administrative Review Board Corrects Evidentiary Procedures for Whistleblower Protection Actions
The U.S. Chamber and the American Trucking Associations, Inc. filed an amicus brief in support of the respondent in a whistleblower protection matter before the Department of Labor’s Administrative Review Board. The brief urged the Board, sitting en banc, to reconsider its decision in Fordham v. Fannie Mae, which incorrectly held that judges may not consider an employer’s evidence of causation when assessing whether an employee’s protected activity was a contributing factor in an alleged adverse employment action. The brief informed the court that, at the contributing-factor phase of a whistleblower action, judges must consider an employer’s evidence that protected activity did not contribute to an adverse action, as an employee is required to prove this issue by a preponderance of the evidence, which demands consideration of the entire record.
The brief also argued that there are no limitations with respect to the types of evidence that judges may consider in assessing the “contributing factor” issue. For example, an employer’s evidence of its subjective non-retaliatory motive is clearly relevant to the contributing-factor inquiry and should be fully considered and weighed by the factfinder.
In addition to reversing and remanding the order below, the Administrative Review Board also overturned its prior decision in Fordham v. Fannie Mae and clarified the proper burden-of-proof framework.