POGO Supports ARB's Burden of Proof Standard

October 17, 2014

The Honorable Thomas E. Perez

Secretary

U.S. Department of Labor

200 Constitution Avenue, NW

Washington, D.C. 20210

Dear Secretary Perez:

Our organizations monitor corporate whistleblower rights for the Make It Safe Campaign (MISC), a coalition of some 50 organizations that support the rights of whistleblowers as an essential cornerstone of institutional accountability. This letter is to commend your Department’s Administrative Review Board (ARB), which has just exercised significant leadership in corporate accountability through its decision in Fordham v. Fannie Mae, ARB No. 12-061 (Oct. 9, 2014). The Fordham decision held that employers must wait for their affirmative defense to argue they would have taken the same action against an employee for independent reasons in the absence of whistleblowing. They cannot use alleged employee misconduct in charges often attacked as pretexts to claim there was no retaliation for activity which is legally protected. The decision is essential to sustain the legal burdens of proof that have defined modern whistleblower law.

No issue is more important for free speech rights than burdens of proof, because they establish the rules for how much and what type of evidence is necessary for either side to prevail in a retaliation case. Since the Whistleblower Protection Act of 1989, every major whistleblower law has been based on a two part test. The employee’s burden of proof for a prima facie case is to show that whistleblowing was relevant, or a “contributing factor” for an alleged retaliatory action. If that occurs, an employer can still prevail through an “independent justification” affirmative defense by proving with clear and convincing evidence that it would have taken the same actions anyway for independent reasons, even if the whistleblower had remained a silent observer.

There are very strong public policy grounds for each half of these legal standards. Two sound principles support the contributing factor test standard that “partially illegal” actions are unacceptable: 1) Unlawful retaliation should not be any part of the eligible considerations in the decision-making process. 2) It is unrealistic in the absence of a confession for the whistleblower to prove that protected disclosures were the “predominant, motivating factor” behind a job action – the prior standard. Otherwise, the whistleblower’s burden would be to read the employer’s mind.

The employer can defend its motives, but only when it is the employer’s burden as part of its affirmative defense with the high bar of the clear and convincing evidence standard, which requires 70-80% of the evidence. There are two sounds reasons for this difficult test as well. – 1) It is a prerequisite for accountability, since the challenged action was based on at least partially illegal grounds. 2) It is a prerequisite for fairness, since the employer has far greater access to records and witnesses to support its independent justifications, which may well be pretexts.

The Fordham decision is essential to maintain all these fundamental principles of whistleblower law. In section 114 of the Whistleblower Protection Enhancement Act, Congress codified the principle that a causal link to protected speech is the only relevant issue for an employee’s prima facie case. The employee has a basic due process right to prove retaliation, beforeany evidence of independent justification, or potential pretext, is allowed

The majority opinion wisely rejected attempts to defeat the whistleblower’s case through evidence of misconduct unrelated to whistleblowing. If this were acceptable, whistleblowers would be put on trial as part of their case. Further, it would allow employers to prevail with potential pretexts while bypassing the requirement for clear and convincing evidence. Indeed, they could defeat a whistleblower case without their pretexts having to meet any burden of proof. It would be the employee’s burden to disprove alleged pretexts, not the employer’s to prove independent grounds are legitimate.

In short, the respective worker and employer obligations must remain clean and distinct from each other for whistleblower rights to remain viable. We commend the ARB for defending the integrity of some 22 whistleblower statutes that it administers. The result in this case illustrates how far-sighted appointments and sound reasoning at the ARB are essential for whistleblower laws to achieve their congressional mandate. We commend your team for a job well done.

Sincerely,

Center for Science and Democracy, Union of Concerned Scientists

Project On Government Oversight

Public Citizen

CC: The Honorable Christopher P. Lu, Deputy Secretary, U.S. Department of Labor