This seminar provides an overview of the U.S. Dep’t of Labor’s (DOL) enforcement and adjudication of whistleblower protection laws, including the burden to establish the elements of the approximately 24 whistleblower laws that OSHA enforces, the damages that whistleblowers can recover, the procedural rules governing DOL whistleblower claims, strategies for effectively representing whistleblowers at OSHA and at the DOL Office of Administrative Law Judges, and settlement and mediation strategies.

1. JASON ZUCKERMAN
WWW.ZUCKERMANLAW.COM
REPRESENTING
WHISTLEBLOWERS AT DOL

2. PRESERVING CLAIMS
• Identify all adverse actions
• Other than HWE, statute of limitations applies to each discrete adverse action
• SOL commences when the retaliatory decision has been both made and
communicated to the complainant
• Plead adverse actions outside of statute of limitations
• Must exhaust administrative remedies against individual defendants to proceed
against them in federal court.

3. “PLEADING” A RETALIATION CLAIM AT OSHA
• Evans v. EPA, ARB No. 08-059, ALJ No. 2008-CAA-003 (ARB July 31, 2012)
• OSHA administrative complaint is sufficient so long as it gives an opposing party “fair
notice” of the charges against it (Iqbal/Twombly does not apply).
• Fair notice requires a showing that the complaint contains: (1) some facts about the
protected activity and alleging that the facts relate to the laws and regulations of one
of the statutes in the [DOL’s] jurisdiction; (2) some facts about the adverse action; (3)
an assertion of causation; and (4) a description of the relief that is sought.
• Thank you Richard Renner!

4. COMPLAINT SHOULD IDENTIFY EACH CATEGORY
OF PROTECTED CONDUCT
• Wallace v. Tesoro Corp., 796 F.3d 468, 480 (5th Cir. 2015)
• “The scope of a judicial complaint is limited to the sweep of the OSHA
investigation that can reasonably be expected to ensue from the
administrative complaint.”
• Failing to reference a distinct category of protected activity in an
OSHA complaint precluded the plaintiff from asserting that category
of protected conduct in district court.
• Plead protected conduct in detail

5. CLAIM AND FORUM SELECTION
• SOX and TFA claims exempt from mandatory arbitration
• DOL whistleblower retaliation laws do not preempt or otherwise affect any right
otherwise available to an employee under Federal or State law to redress an
adverse action.
• FRSA’s election of remedies provision permits a whistleblower claim to proceed
notwithstanding the employee’s pursuit of a grievance or arbitration under a
collective bargaining agreement.
• Consider the impact of a final DOL order on other claims

6. ADVERSE ACTIONS
• Broader than Burlington Northern material adversity. Williams v. American Airlines, Inc., ARB No.
09-018, ALJ No. 2007-AIR-004 (ARB Dec. 29, 2010) (adverse action applies to any “unfavorable
employment actions that are more than trivial, either as a single event or in combination with
other deliberate employer actions alleged”)
• Threatened retaliation is actionable
• Constructive discharge
• “Outing” a whistleblower
• Change in job duties
• Harassment
• Referring undocumented worker to ICE
• Suing whistleblower

7. “OUTING” A WHISTLEBLOWER
Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 259
(5th Cir. 2014)
• Merely “outing” a whistleblower is an adverse action
under SOX.
• “[The] targeted creation of an environment in which
the whistleblower is ostracized is . . . in effect, a
potential deprivation of opportunities for future
advancement.”
• Menendez resigned and did not suffer economic loss
• ALJ awarded special damages

8. PROTECTED CONDUCT
• “Reasonable belief” standard:
• Disclosure of potential violation protected
• No magic words required
• Reasonable but mistaken belief protected
• Whistleblower’s motive for engaging in protected conduct irrelevant
• Complainants need not show that their disclosures “definitively and
specifically” relate to the relevant laws

9. DOL REJECTS “DUTY SPEECH” DOCTRINE
• DOL and federal judges generally reject a duty
speech/step outside exception to SOX protected conduct:
• Robinson v. Morgan-Stanley, ARB Case No. 07–070 (ARB Jan. 10, 2010)
• Jordan v. Sprint Nextel Corp., ALJ No. 2006-SOX-041 (ALJ March 14, 2006)
• Deremer v. Gulfmark Offshore, Inc., ALJ Case No. 2006-SOX-2 (June 29,
2007)
• Yang v. Navigators Group, Inc., 2014 WL 1870802 (S.D.N.Y. May 8, 2014)

10. SOX CONTRIBUTING FACTOR CAUSATION
Palmer v. Canadian National Railway, ARB No. 16-035, ALJ No. 2014-FRS-154 (ARB
Sept. 30, 2016) (en banc)
• “Contributing factor” = protected activity played some role—even an
insignificant or insubstantial role—in the adverse action
• Decision-maker knowledge of the protected activity and close temporal proximity
will suffice to prove causation in some cases
• Whistleblower need not prove pretext

11. CONTRIBUTING FACTOR CAUSATION
• Palmer
• We want to reemphasize how low the standard is for the employee to meet, how ‘broad and
forgiving’ it is. ‘Any’ factor really means any factor. It need not be ‘significant, motivating,
substantial or predominant’ — it just needs to be a factor.
• Potential forms of proof:
• temporal proximity;
• the falsity of an employer’s explanation for the adverse action;
• inconsistent application of an employer’s policies;
• employer’s shifting explanations for its actions; or
• animus toward the whistleblower’s protected activity.
• “[I]f the ALJ believes that the protected activity and the employer’s nonretaliatory reasons both played
a role, the analysis is over and the employee prevails on the contributing-factor question . . . ”

12. SAME-DECISION AFFIRMATIVE DEFENSE
• In contrast to Title VII, not a burden of production
• What is “clear and convincing evidence”?
• Not enough for the employer to show that it could have taken
the same action; it must show that it would have taken the
same action
• Quantified, the probabilities might be in the order of above
70%

13. OSHA REASONABLE
CAUSE STANDARD
• OSHA can issue a merit finding
where an investigation reveals
that the complainant could
succeed in proving a violation.
• “reasonable cause standard is
somewhat lower than the
preponderance of the evidence
standard that applies following a
hearing”

14. ADVOCATING AT OSHA
• Propose investigative plan (list of witnesses, documents, etc.)
• Get a copy of respondent’s submission
• OSHA can interview non-managerial employees without notifying company
counsel
• An investigator can tell potential witnesses that their identity will be kept in
confidence to the extent allowed by law.
• Submissions to OSHA discoverable in litigation

15. SHAPING DAMAGES ORDERED BY OSHA
• Identify specific basis for damages
• Reinstatement
• If, after the investigation, OSHA determines there is “reasonable cause” to believe the
complaint has merit, with limited exceptions “it shall issue” a preliminary order
restoring the complainant to his or her employment status and requiring the employer
to take affirmative action to abate the violation. 49 U.S.C. § 42121(b)(3)(B); 29 C.F.R. §
1980.105(a)(1).
• Reinstatement orders are immediately effective and are not stayed pending the
resolution of any objections or appeal. See 49 U.S.C. § 4212 (b)(2)(A).

16. OBJECTING TO OSHA’S FINDINGS
• Within 30 days of receipt of findings, either party may file
objections and request a hearing on the record before an ALJ.
• If no objection is filed within 30 days, the preliminary order is
deemed a final order that is not subject to judicial review.

17. PARALLEL REGULATORY INVESTIGATIONS
Other agencies may investigate the violations that the whistleblower disclosed and
some agencies can take enforcement action for retaliation, e.g., the SEC and NRC
• CFPA – CFPB
• AIR21– FAA
• SOX - SEC
• ERA – NRC

18. INVALID “GAG CLAUSES” BARRING
WHISTLEBLOWING
• Blatant contractual provision barring whistleblowing to regulators
or law enforcement have always been unlawful
• Post-Dodd-Frank, there is a sea change in barring provisions that
have the effect of impeding lawful whistleblowing

19. INVALID “GAG CLAUSES” BARRING
WHISTLEBLOWING
• SEC Rule 21F-17
• “No person may take any action to impede an individual from
communicating directly with the Commission staff about a possible
securities law violation, including enforcing, or threatening to enforce,
a confidentiality agreement…with respect to such communications.”

20. INVALID “GAG CLAUSES” BARRING
WHISTLEBLOWING
• SEC has taken steps to combat contractual provisions:
• Requiring employees to waive possible whistleblower awards
• Prohibiting employees from disclosing subject of internal
investigation
• Requiring notice prior to responding to inquiry from SEC

21. OSHA POLICY GUIDELINES FOR
APPROVING SETTLEMENT
AGREEMENTS

22. OSHA POLICY GUIDELINES FOR APPROVING
SETTLEMENT AGREEMENTS
OSHA guidelines barring provisions that impede whistleblowing:
• Provisions that require employees to waive the right to receive a
monetary award from a government-administered reward program
• Provisions that require the employee to advise the employer before
voluntarily communicating with the government
• Provisions requiring the employee to affirm she has not previously
provided information to the government

23. RESOURCES
•
• OSHA desk aids https://www.whistleblowers.gov/desk-aids
• OSHA Investigation Manual
https://www.osha.gov/sites/default/files/enforcement/directives/CP
L_02-03-007.pdf
• OSHA memos https://www.whistleblowers.gov/policy/directives
• OALJ Mediation Program
https://www.dol.gov/agencies/oalj/mediation
• OALJ digests of key cases and OALJ rules posted at
www.oalj.dol.gov
•