Whistleblower Law Blog
ARB Clarifies: Trucking Whistleblowers Face “Much Easier” Proof of Retaliation
In two related decisions last month, the U.S. Department of Labor’s Administrative Review Board (ARB) noted that proving retaliation in trucking-related whistleblower cases became “much easier” in 2007 — and said that judges will no longer get a free pass on applying the old standard.
In Beatty v. Inman Trucking Management, Inc., the ARB recognized its own “legal error” in accepting decisions under the Surface Transportation Assistance Act (STAA) that continued to judge retaliation based on an outmoded framework derived from Title VII of the Civil Rights Act of 1964, instead of insisting on the “far more protective” framework borrowed from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).
Under the AIR 21 standard — which Congress extended to the STAA in 2007 — employers who want to avoid liability for punishing a whistleblower must supply “clear and convincing evidence” that they would have taken the same action even without the whistleblowing activity. Under the older standard, by contrast, an employer could avoid liability by offering a “legitimate” explanation, which then forced the whistleblower to prove that the explanation was just a pretext.
The ARB had previously considered two appeals in the long-running case, originally filed in 2007 by truck drivers Lindell and April Beatty, sending it back to an administrative law judge (ALJ) on other grounds each time — but noting in its second remand that the AIR 21 standard should be applied. When the case arrived back at the ARB with the Beattys’ complaint again dismissed for the wrong reasons, the board put its foot down.
Inman Trucking, accused of blacklisting the Beattys because of their persistent safety concerns, had not faced enough scrutiny, the board said: The AIR 21 standard “is a tough standard [for employers], and not by accident. Congress appears to have intended that companies … face a difficult time defending themselves.”
A few weeks later, a slightly different ARB panel reached the same conclusion in Bailey v. Koch Foods, LLC, another long-running case where it had previously held the application of the wrong retaliation standard to be “harmless error.” In remanding the case to an ALJ after being overruled itself on another matter — by the U.S. Court of Appeals for the Eleventh Circuit — the ARB cited Beatty and essentially said: No more free passes.