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ARB Affirms Damages for Whistleblower, Expands Protective Rule

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In affirming a pilot’s reinstatement and damages award, the U.S. Department of Labor’s Administrative Review Board (ARB) showed that its new Speegle test — which makes it tougher for employers to justify the firing of whistleblowers — will reach well beyond its initial application to the nuclear industry.

Under Speegle, a judge may evaluate an employer’s claim that it would have punished a worker regardless of whistleblowing (the “same decision” defense) only after “excising” from consideration both the employee’s protected activity and all connected facts.

In Benjamin v. CitationShares Management, LLC, the ARB applied this standard to vindicate Robert Benjamin, a private-jet pilot who was fired after raising safety concerns. Mr. Benjamin claimed that his firing violated the whistleblower-protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Meanwhile, his employer said it fired Mr. Benjamin for trying to record a meeting about the safety concerns — and then lying about the attempt.

In its ruling, the ARB agreed with an administrative law judge’s finding that the safety report, the attempted recording, and the resulting lie were “inextricably intertwined” — and therefore that the lie wasn’t a valid reason for punishing Mr. Benjamin.

“[T]he factfinder must determine as best as possible, which material facts necessarily would have changed in the absence of protected activity,” said the ARB, endorsing the judge’s decision to award Mr. Benjamin more than $500,000 in damages, including $50,000 for emotional distress, plus reinstatement to his former position.

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