By Bill Wright
The courts continue to explain the burdens applicable to certain whistleblower statutes enforced by the U.S. Department of Labor (“DOL”). The statutes that use the procedure adopted by the Sarbanes-Oxley Act require the complainant to prove by a preponderance of the evidence that protected activity was a contributing factor to an adverse action. Then, the employer has the burden to show by clear and convincing evidence that it would have made the same decision regardless of the protected activity. In this case, the Administrative Law Judge who heard the evidence believed that the complainant could carry his burden just by raising an inference of retaliation and then showing that the employer’s stated rationale for the decision was a pretext for retaliation. Not so. The complainant’s burden is to show his prima facie case by a preponderance of the evidence. Bechtel v. ARB & Competitive Technologies Inc., No. 11-4918-ag (2nd Cir. March 5, 2013).
The stiffer requirements for a prima facie case under these DOL whistleblower statutes balances (somewhat) the harsh remedies available at even the administrative stage in these claims, but we still see the headlamp of these enforcement actions bearing down on us.