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ARB Adopts Burlington Northern Standard for Whistleblower Retaliation Claims

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In Melton v. Yellow Transp. Inc., the Department of Labor’s Administrative Review Board (ARB) clarified that it will apply the Burlington Northern standard to whistleblower cases when determining whether an employer violated a whistleblower retaliation protection provision.  This decision is significant because under Burlington, an employment action is materially adverse if it is capable of dissuading a reasonable employee from engaging in whistleblowing activity, a broad standard focused on the chilling effect of an adverse employment action.  While the concurring opinion purports to apply the Burlington Northern standard, it concluded that the issuance of a warning letter did not affect the terms of Melton’s employment and hence is not an actionable adverse action.  Melton’s attorney is appealing the ARB’s decision on the ground that the warning letter had a chilling effect on Melton, i.e., it would deter Melton from engaging in further protected conduct, and therefore constitutes actionable retaliation.

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