Administrative Review Board

News & Analysis as of

ARB Rejects CFPA Whistleblower Claim On Protected Activity Grounds

On November 6, 2015, the DOL’s Administrative Review Board affirmed the dismissal of Consumer Financial Protection Act (“CFPA”) whistleblower claims of a terminated mortgage broker, concluding that the complainant did not...more

DOL ALJ Orders Government Contractor To Produce Documents To OFCCP

On October 23, 2015, a Department of Labor (“DOL”) administrative law judge (“ALJ”) ordered a government contractor, Convergys Customer Management Group, Inc. (“Convergys”), to submit its affirmative action program along with...more

Supreme Court Clarifies Limits on Tribunal Participation in Reviews of Its Own Decisions

In an increasingly regulated world, governments have established a litany of administrative tribunals to oversee and administer complex regulatory schemes. Often, applying their specialized expertise, such tribunals...more

ARB Rules That Secret Recording of Workplace Conversations Can Be Protected Whistleblowing Activity

On September 28, 2015, the U.S. Department of Labor Administrative Review Board (“ARB”) held that the recording of workplace conversations can be protected whistleblower activity under the Energy Reorganization Act of 1974...more

Taking Down the Flagg: Fifth Circuit Remands Med Mal & Device Case for Lack of Diversity Despite Uncompleted Administrative Review...

A divided panel (2-1) of the U.S. Circuit Court of Appeals for the Fifth Circuit recently held that failure to exhaust a state law pre-suit medical panel review process did not subject the plaintiff’s claims against the...more

HHS Proposes Major Overhaul of the Common Rule

On September 8, 2015, the Department of Health and Human Services proposed significant revisions to the Federal Policy for the Protection of Human Subjects (“Common Rule”), the set of federal regulations governing the conduct...more

Between Scylla and Charybids: The Mediation Privilege and Legal Malpractice Claims

I attended a mediation earlier this month in a real estate case. I won’t say more through because . . . well . . . it’s confidential. The confidentiality of mediations and of settlement discussions generally – the idea...more

Fifth Circuit Rejects SOX Whistleblower Claims Not Raised in Administrative Complaint; Adopts Liberal "Reasonable Belief" Pleading...

On July 31, 2015, the Fifth Circuit issued a decision that may have both a positive and negative impact on employers defending whistleblower retaliation claims under the Sarbanes Oxley Act (SOX). In this decision, the court...more

Sixth Circuit Changes Course on Proof Required to Show Protected Whistleblower Activity Under SOX

The Sarbanes-Oxley Act (SOX) provides anti-retaliation protection to whistleblowers who engage in “protected activity.” To engage in protected activity under SOX, the whistleblower must provide information to the Securities...more

DOL Burdens Davis Bacon Contractors With Employee Lodging Costs

The Department of Labor’s Administrative Review Board (ARB) released its long-awaited opinion in the Weeks Marine case. In that decision, ARB announced a rule that is an important development for federal government...more

ARB Issues Impactful Decision On Whistleblower Retaliation Causation Standard

The ARB recently addressed the standard for proving that protected activity was a “contributing factor” in adverse employment actions. It concluded that evidence showing that an employer would have made the same adverse...more

Provider Reimbursement Review Board Issues First Favorable Jurisdictional Decision Following May 2014 Alert 10 Announcement

On March 19, 2015, the Provider Reimbursement Review Board (Board) issued a decision in which it accepted jurisdiction over an appeal in which an Ohio hospital sought to add to its Medicare DSH calculation inpatient days that...more

"Implications of National Security Reviews on Foreign Acquisitions of US Businesses"

The Committee on Foreign Investment in the United States (CFIUS) can have a significant impact on transactions involving foreign acquirers. Parties considering cross-border merger and acquisition transactions should be aware...more

Court Rules That Outing a Whistleblower Constitutes Retaliation

When whistleblowers intend to remain in their company after alerting authorities to wrongdoing, it is imperative that they are able to maintain their privacy so that they would not be the victims of retaliation by other...more

DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment

On December 22, 2014, the U.S. Department of Labor’s (DOL) Administrative Review Board (ARB) issued an important Final Order and Decision clarifying precisely when an H-1B employer’s Labor Condition Application (LCA) back pay...more

Breaking Up Is Still So Hard to Do: DOL Clarifies H-1B Bona Fide Termination Rule

Employers must navigate through a maze of complex regulations when seeking H-1B temporary authorization to hire foreign nationals in specialty occupations. Yet, as hard as it is to hire H-1B employees, it can be even more...more

Third Circuit Finds that the Federal Railroad Safety Act's Anti-Retaliation Provision Does Not Cover Employees Treated for...

In a case of first impression with far-reaching implications for the railroad industry, the Third Circuit has held that the provision of the Federal Railroad Safety Act (FRSA) prohibiting discipline of employees for...more

Fifth Circuit Rules Revealing Whistleblower's Identity Is Materially Adverse Action

The Fifth Circuit Court of Appeals recently ruled that a notice revealing a whistleblower's identity to other employees can be considered a "materially adverse" action and violates the Sarbanes-Oxley Act of 2002 (SOX). The...more

DOL Administrative Review Board Nixes Greedy H-1B Worker's Front Pay Appeal Based on New H-1B Employer Petition Approval

The U.S. Department of Labor (DOL) has just released a final decision and order rendered this past July by the Administrative Review Board (ARB), holding that an H-1B worker's front pay claim against a former employer is cut...more

Safeguarding a Whistleblower’s Identity

Everyone knows that the Sarbanes-Oxley Act prohibits retaliation against whistleblowers. It may be less obvious, however, that merely disclosing a whistleblower’s identity can constitute prohibited retaliation. Nevertheless,...more

This Week In Securities Litigation

The Commission filed another settled FCPA action this week. The proceeding named two U.S. citizens living abroad as Respondents. The DOJ issued an Opinion discussing successor liability....more

Fifth Circuit Finds SOX Violation in Disclosure of Whistleblower’s Identity

The Fifth Circuit affirms the DOL Administrative Review Board’s decision that employer disclosure of a whistleblower’s identity in a document retention notice constitutes an adverse action....more

5th Circuit: Outing Whistleblower Equals Adverse Action

On November 12, 2014, in Halliburton, Inc. v. Admin. Review Bd., 5th Cir. No. 13-cv-60323, the Fifth Circuit affirmed an ARB’s decision that disclosing the identity of a whistleblower may constitute an “adverse action” under...more

No Good Deed Goes Unpunished: Document Preservation Notices Can Lead to SOX Violation!

On November 12, 2014, the Fifth Circuit affirmed a Department of Labor finding that Halliburton retaliated against a whistleblower by including his name in a document preservation notice. The court also held that emotional...more

Sharply Divided Illinois Supreme Court Narrows Circuit Court Jurisdiction Over Pension Board Decisions

In its second significant decision on public employee pensions of the morning, the Illinois Supreme Court has reversed the Appellate Court in The People ex rel. Madigan v. Burge. In an opinion by Justice Anne M. Burke, joined...more

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