Department of Labor Whistleblowers: Expert Tips to Win Your Retaliation Case

• The DOL rules severely limit the ability of any company to file counterclaims against whistleblowers or seek sanctions against whistleblowers.
• Most of the DOL laws prohibit mandatory arbitration.
• The case law developed at the labor department has a broadly defined protective activity, adverse action, and the entitlement to damages.
• Simplified procedures for filing a complaint.
• The DOL procedures can be litigated by those who are not attorneys.

1. Hire an Experienced Whistleblower Attorney

The most important step a whistleblower can take to help their chances of winning a retaliation case is hiring an experienced whistleblower attorney. Whistleblower retaliation cases are complex and there are important differences between different whistleblower protection laws. Hiring an attorney who is experienced in whistleblower retaliation cases and is familiar with the process is an invaluable asset for any whistleblower.

2. Know the Specifics of the Law

The Department of Labor oversees more than twenty different whistleblower laws. The rights afforded to whistleblowers under these laws are not uniform, therefore it is essential that a whistleblower familiarize themselves with the specifics of the law they are seeking protection under.

Under certain DOL laws a whistleblower may remove their case to federal court for de novo review while under other laws this is not permitted. Different laws also have varying statute of limitations, burdens of proof, and rights of discovery. An experienced whistleblower attorney can help a whistleblower understand their rights under the specific law they are filing their case under.

3. File Promptly

Each whistleblower protection law has a strict statute of limitations. A whistleblower must file their retaliation complaint within this timeframe. The deadline is based upon the day the retaliatory act takes place. For example, if a whistleblower is fired for blowing the whistle they would have a specific number of days from the day they were notified of their termination to file their retaliation complaint.

The statute of limitations for DOL whistleblower protection laws are either 30 days, 60 days, 90 days, or 180 days. The specific statute of limitations for each law can be found here.

4. Gather Evidence

It is essential that a whistleblower gathers the proper evidence to prove they were retaliated against for blowing the whistle. A whistleblower should begin compiling hard evidence as soon as possible. Contemporaneous documentation is key. However, a whistleblower must be careful not to improperly steal confidential information.

During the discovery stage of a case a whistleblower can submit information requests which the company must respond to. Useful documentation that can be gathered in discovery includes performance records, personal records of other comparable employees, internal investigative reports and audits, e-mails and records related to the whistleblower allegations.

5. Know When to Remove a Case to Federal Court

Under certain statutes enforced by DOL a whistleblower may remove their case to a federal court if DOL delays the issuance of an order within a certain amount of time (generally within the time period of 180 or 210 days). When a case is removed to federal court it is litigated de novo, meaning that the entire case is adjudicated anew, as if nothing was ever filed within the DOL.

Whether or not to remove a case to federal court is a critical decision that must be carefully weighed. It is a mistake to think that a whistleblower will automatically do better before a U.S. District Court judge. There are numerous down-sides to filing in federal court. Additionally, only the employee has a right to remove a case to federal court. This gives the employee a significant advantage. He or she can wait and see what DOL Administrative Law Judge (ALJ) is assigned to the case.

All of the ALJ decisions are published on the ALJ website, and employees can determine who his or her judge interprets the law and procedures, and whether or not this judge can be expected to fairly decide the case. Additionally, the employee can review the reputation of the federal judges in the judicial district where his or her case would be filed. Such an analysis should be conducted before any decision to remove a case is finalized.

Furthermore, the DOL laws offer some significant benefits to whistleblowers. These include the very simple complaint filing process with no filing fee, the fact that the company cannot file a counterclaim seeking damages or an injunction against the employee, and the prohibition of the enforcement of a mandatory arbitration agreement.

1. Filing a Complaint

To file a whistleblower retaliation case with DOL a whistleblower must first formally file a complaint with OSHA within the relevant law’s statute of limitations. A whistleblower or their attorney can file a whistleblower complaint with OSHA via mail, fax, telephone, in person, or online.

2. OSHA Investigation

If a whistleblower’s complaint meets OSHA’s requirements, most notably the relevant statute of limitations, then OSHA will conduct an investigation into the allegations. Due to staffing issues, OSHA is known for massive delays in their investigations into whistleblower retaliation allegations.

3. Administrative Law Judge Hearing

After OSHA releases the preliminary findings of its investigation, either the employee or the employer can appeal those findings and request a formal hearing before a DOL administrative law judge. These hearings are similar to trials conducted before federal judges but are tried without a jury. Administrative law judges are independent, non-political appointees.

4. Appeal to Administrative Review Board

After a DOL administrative law judge issues a decision, either party can appeal the ruling internally within the DOL to the Administrative Review Board (ARB). The ARB consists of five members appointed by the Secretary of Labor. There are no controls on who can be an ARB member, there is no confirmation process and no requirement that the political composition of the board be balanced. The ARB is supposed to issue the DOL’s final decision within 120 days, though this deadline is rarely followed.

5. Remove Case to Federal Court

All of the DOL whistleblower protection laws allow either party to file an appeal with the U.S. Court of Appeals. These appeals are limited under the Administrative Procedure Act however, and the appeals court does not conduct a trial.

Under certain DOL whistleblower laws, a whistleblower may remove his or her case to federal district court. In these cases the federal district court is not bound by any of the findings of the OSHA Administration or an ALJ. Instead, the cases are litigated de novo and employees are entitled to present their claims to a jury. De novo means that the entire case is adjudicated anew, as if nothing was ever filed within the DOL. As long as the Department of Labor has not issued a final order, this removal process gives whistleblowers a second bite at the apple.

OSHA orders Wells Fargo to reinstate whistleblower, fully restore lost earnings in banking industry | Occupational Safety and Health Administration

In 2017, OSHA ordered Wells Fargo Bank to compensate and reinstate a former bank manager who was fired after blowing the whistle on suspected bank, mail and wire fraud by two bankers under his supervision. OSHA determined that the bank manager’s whistleblowing, which is protected under the Sarbanes-Oxley Act, was at least a contributing factor in his termination. The whistleblower received back pay, compensatory damages, and attorneys’ fees which were together calculated at about $5.4 million.

Federal Judge Orders Lloyd Industries and Company Owner to Pay $1.04 Million to Employees Terminated for Assisting Safety Investigation | Occupational Safety and Health Administration

A federal judge in the U.S. District Court for the Eastern District of Pennsylvania has awarded $1,047,399 in lost wages and punitive damages to two former employees of Lloyd Industries Inc., a Montgomeryville, Pennsylvania, manufacturer who were retaliated against for their participation in a federal safety investigation. The employees participated in an OSHA investigation following an incident in which one of the employees’ co-workers suffered the amputation of three fingers.

OSHA orders Amtrak to reinstate, pay $892K to employee discharged in violation of Federal Railroad Safety Act | Occupational Safety and Health Administration

In 2017, OSHA ordered Amtrak to reinstate and pay $892,551 to an employee who raised concerns about railroad safety, fraud and abuse involving an Amtrak contractor. Amtrak terminated the employee in retaliation. The employee’s whistleblowing was a protected action under the Federal Railroad Safety Act.