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The ARB Reaffirms the Speegle Standard, which Requires an Employer to Show It would have Punished a Whistleblower Absent Any Protected Activity

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In previous posts on May 15 and September 3, we discussed the Department of Labor Administrative Review Board’s new Speegle test—which places a tougher burden on employers to justify any adverse actions against whistleblowers. The ARB recently reaffirmed the Speegle standard in Cain v. BNSF Railway Co.

Cain involved the following facts: Shortly after an on-the-job traffic accident in January 2010, Christopher Cain filed a report to his employer, BNSF Railway, about minor injuries he sustained. A few weeks later, Cain’s symptoms had not disappeared, and he sought medical treatment. His doctors said his injuries were much worse than originally thought, including broken ribs and fluid around his lungs. Cain filed a second report about the more severe injuries, although his supervisors discouraged him from doing so. A short time after Cain filed his second report, BNSF opened an investigation into potential wrongdoing by Cain related to the accident. BNSF ultimately found that Cain violated its reporting rule by failing to report the full extent of his injuries in his first report. Cain then filed a complaint for whistleblower retaliation under the Federal Rail Safety Act of 1982 (FRSA).

The DOL’s Office of Administrative Law Judges found for Cain, and BNSF appealed to the ARB. The ARB applied the Speegle standard, which requires an employer to show that it would have punished a whistleblower even if he had not engaged in protected activity. Speegle requires an ALJ to examine fully both the protected activity and the connected facts in determining whether an employer’s use of the “same decision” defense is valid.

Here, the ARB determined that the violation for which Cain was allegedly punished, violating reporting procedures, would not have occurred but for his protected activity. The employer thus could not rely on the “same decision” defense. This case demonstrates again the ARB’s commitment to the Speegle standard and the heavy burden it places on employers who take adverse actions against whistleblowers. Under the Speegle standard, those who express valid concerns about their workplace and its practices will have an easier time holding employers accountable for retaliation.

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