January 13, 2016 Articles

DOL Shifts Employee Burden in OSHA Whistleblower Cases

Given this stalemate at the Department of Labor, employers and employees alike are left with uncertainty until the issue is settled in the courts of appeals.

By Nikki McArthur – January 13, 2016

President Obama has made increasing legal protections for whistleblowers a priority, and one of the key players in this effort is the Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor. OSHA enforces 22 whistleblower statutes, more than half of which have been enacted in the past 15 years. In October 2014, the Department of Labor’s Administrative Review Board (ARB) issued Fordham v. Fannie Mae and appeared to significantly lower the burden for employees seeking relief under a number of these statutes, including the Affordable Care Act, Sarbanes-Oxley, and various laws directed at safety-sensitive industries such as nuclear power plants. However, a March 2015 en banc decision in Powers v. Union Pacific Railroad Co., while purporting to clarify Fordham, has left the law largely unsettled regarding what evidence should be considered as part of an employee’s case.  

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