The Department’s Top Judges will Decide the “Burden of Proof” Whistleblower Must Meet to Prevail in Sarbanes-Oxley and Dodd-Frank Whistleblower Cases
The Department of Labor Administrative Review Board (ARB) will hold oral arguments in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034 on Wednesday, January 14 at 2pm. This case will decide the burden of proof that whistleblower’s must meet in order to prevail in retaliation cases filed under the key corporate whistleblower laws, including the Sarbanes-Oxley Act, the Dodd-Frank Act’s Consumer Safety laws, transportation safety laws, the Atomic Energy Act and the Affordable Care Act, among others.
KKC partner Stephen M. Kohn will be one of the attorneys arguing the case on behalf of the whistleblowers. Kohn, who also serves pro bono as the Executive Director of the National Whistleblower Center, called the Powers case “monumental.” The case is being heard en banc by all of the top Labor Department appeals court judges who have the authority to decide whistleblower cases.
“Establishing the correct burden of proof in establishing a whistleblower claim is critical for the protection of whistleblowers. If the Department of Labor sets the burden to high, whistleblowers will not be able to prevail in these often highly contentious proceedings. Corporations have an immense economic advantage in litigating retaliation cases. Recognizing the terrible position most whistleblowers face when trying to defend their cases against the largest and most well financed corporate law firms in the United States, Congress lowered an employee’s burden of proof for establishing claims. The U.S. Chamber of Commerce has lobbied against this lowered burden, and is using its extensive litigation resources to turn the clock back, and make it nearly impossible for employees to win these cases. The future of these corporate whistleblower laws is on the line,” Kohn added.
In December 2014, the National Whistleblower Center, along with other pro-whistleblower organizations, filed extensive briefs before the Labor Department on the burden of proof issue. The U.S. Chamber of Commerce and the American Trucking Association, among others, filed briefs against the whistleblower, aggressively campaigning for high burdens of proof for whistleblowers.
“If the Chamber’s arguments are adopted by the Department of Labor, the rights of workers to file whistleblower retaliation claims under several federal statutes will be effectively snuffed out,” Kohn said.
The ARB has set aside an unprecedented two hours and ten minutes for the oral argument. Kohn will be arguing the case on behalf of the National Whistleblower Center, which filed a “friend of the court” brief on behalf of all corporate whistleblowers whose cases are decided by the Labor Department. Kohn has litigated corporate whistleblower cases since 1984, and is the author of The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press, 3rd. ed. 2013).
The oral argument is set to begin at 2 pm on January 14, 2015 in the Ceremonial Courtroom 20 on the 6th Floor of the E. Barrett Prettyman U.S. Courthouse, 333 Constitution Ave, NW Washington, D.C.