Keith Mack
Whistleblower cases are heard by an administrative law judge when the whistleblower requests a hearing after an investigation by the Department of Labor. The administrative law judge will independently consider the testimony and evidence to determine whether a whistleblower law has been violated. Whistleblower cases heard by an administrative law judge proceed like any other lawsuit, with a pre-hearing period for discovery, filing motions, and scheduling. The administrative law judge will write a decision after the hearing, which is open to the public.
| Characteristics | Values |
|---|---|
| Whistleblower cases heard by an administrative law judge | Cases where the whistleblower has filed a complaint, grievance, or appeal to remedy whistleblowing reprisal; testified for or assisted someone else with their complaint, grievance, or appeal; cooperated with or disclosed information to an Inspector General or the Office of Special Counsel (OSC); or refused to obey an order that would require them to violate a law, rule, or regulation |
| Location of hearings | Generally, the most practical place for a hearing, such as a town nearest to where most witnesses would be located |
| Pre-hearing | Parties conduct discovery, file motions with the ALJ, and work out the hearing schedule |
| Settlement negotiations | OALJ will provide a settlement judge or mediator to assist in any settlement negotiation if the parties jointly request |
| Hearing | Witnesses testify and evidence is submitted. This forms the record upon which the case is decided. The ALJ independently considers the testimony and evidence to determine whether a whistleblower law has been violated and what relief is appropriate |
| Representation | Parties in OALJ whistleblower cases are frequently represented by an attorney. A lay representative or pro se representation is also possible |
| Ex parte communications | Communications outside the knowledge of opposing counsel or party, between an agency employee involved in the decision-making process and an interested person outside the decision-making process, about significant substantive issues of the case. Some ex parte communications are not improper, e.g., for scheduling hearings or requesting extensions of time |
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What You'll Learn
- Cases are heard by an Administrative Law Judge (ALJ) if both parties request it
- ALJ hearings are de novo, meaning the ALJ considers evidence independently
- Cases are open to the public, but sensitive evidence can be protected
- Parties may engage in settlement negotiations with a settlement judge or mediator
- The whistleblower has the burden of proof in whistleblower appeals
Cases are heard by an Administrative Law Judge (ALJ) if both parties request it
Whistleblower cases are heard by an Administrative Law Judge (ALJ) if both parties request it. An ALJ is assigned to a case shortly after it is docketed. ALJ hearings are generally set for the most practical place for a hearing, such as the town nearest to where most witnesses would be located. The whistleblower case proceeds much like any lawsuit: there is a pre-hearing period in which the parties conduct discovery, file motions with the ALJ, and work out the hearing schedule.
Witnesses will testify and evidence is submitted during the hearing. This is the record upon which the case is decided, so it is important to put on all of your relevant evidence at this time, including evidence on damages (unless the ALJ has ordered a second hearing dedicated solely to this issue). ALJ hearings are de novo, which means "from the beginning." Thus, the ALJ will independently consider the testimony and evidence to determine whether a whistleblower law has been violated and, if so, what relief is appropriate.
Parties may engage in settlement negotiations. OALJ will provide a settlement judge or mediator to assist in any settlement negotiation if the parties jointly request. It is advised to obtain an attorney who is experienced in whistleblower cases to represent you. Parties in OALJ whistleblower cases are frequently represented by an attorney, and the law in this area can be complex. You may also elect to use a "lay representative," who is someone not licensed to practice law, or you may choose to appear and represent yourself ("pro se").
Ex parte communications are communications outside the knowledge of opposing counsel or a party, between an agency employee involved in the decision-making process and an interested person outside the decision-making process, about significant substantive issues of the case. Some ex parte communications are not improper. Communications for the sole purpose of scheduling hearings or requesting extensions of time are not considered ex-parte communications, except that all other parties should be notified of such requests and be given an opportunity to respond.
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ALJ hearings are de novo, meaning the ALJ considers evidence independently
An administrative law judge (ALJ) presides over whistleblower cases, among other types of cases. ALJ hearings are de novo, meaning the ALJ considers evidence independently and is not bound by the findings of the investigator. They may request additional evidence before the hearing, and they have the authority to review all evidence and make a decision without bias.
ALJ hearings are typically conducted in a room with the judge at the head, dressed in a black robe. A hearing monitor assists the ALJ in taking down testimony, and there may be experts present, such as a Vocational Expert and a Medical Evaluator, who offer opinions on the case. The ALJ may require the enrollee to participate in a hearing if their testimony is necessary to decide the case. The hearing can be conducted in person, by video-teleconference, or by telephone.
In the case of whistleblower investigations, if the investigator finds reasonable cause to believe that the Respondent violated the statute in question, their supervisor will issue a findings letter to both parties. This letter includes information about remedies and the right to object and have the case heard by an ALJ, except in cases under specific sections.
It is important to note that the ALJ's decision is final and must be provided immediately to all relevant parties. The ALJ will either affirm, reverse, or modify the original decision and provide a written explanation for their action.
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Cases are open to the public, but sensitive evidence can be protected
Administrative Law Judge (ALJ) hearings are open to the public. However, if you intend to introduce evidence or testimony that you do not want to be made public, you must take steps before the ALJ to protect this information. Whistleblower cases proceed much like any other lawsuit: there is a pre-hearing period in which the parties conduct discovery, file motions with the ALJ, and work out the hearing schedule. Witnesses will testify and evidence is submitted. This forms the record upon which the case is decided, so it is important to put forward all of your relevant evidence at this time.
The ALJ will independently consider the testimony and evidence to determine whether a whistleblower law has been violated, and if so, what relief is appropriate. The ALJ hearings are de novo, meaning "from the beginning". This means that the judge will not be influenced by previous decisions or interpretations of the law. The parties may engage in settlement negotiations, and the OALJ will provide a settlement judge or mediator to assist if the parties jointly request.
Cases are generally set for the most practical place for a hearing, such as a town nearest to where most witnesses would be located. You will not have to travel to Washington, D.C. for the hearing unless that is the logical place for the hearing. If your claim is referred to the OALJ for a hearing, you would be well-advised to obtain an attorney who is experienced in whistleblower cases to represent you. Parties in OALJ whistleblower cases are frequently represented by an attorney, and the law in this area can be complex.
At the conclusion of the investigation, the investigator will make a recommendation to their supervisor regarding whether the evidence provides reasonable cause to believe that the Respondent violated the specific statute in question. If the supervisor and management concur with the merit or dismissal recommendation, OSHA will issue a findings letter to both parties, which will include information about remedies and the right to object and have the case heard by an administrative law judge.
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Parties may engage in settlement negotiations with a settlement judge or mediator
In whistleblower cases, parties may engage in settlement negotiations with a settlement judge or mediator. Settlement negotiations can occur at any point in the legal process before a final court order is issued. This can take place in the courthouse, such as at a pre-trial hearing, or outside the courtroom before a hearing. Settlement can also be reached away from court.
A settlement judge proceeding is a court-sponsored mediation conducted by an administrative law judge who is familiar with the procedure and subject matter of the U.S. Department of Labor adjudications. The settlement judge is authorised to consult with the parties and help them resolve their dispute without the need for a formal administrative hearing. The settlement judge conferences are off-the-record and relatively informal compared to the normal hearing process. The settlement judge may meet with counsel together and separately, and follow-up conferences may be conducted. The settlement judge's role is adjusted according to the circumstances of the case, and they may act as a moderator, facilitator, or intermediary. They will focus on assessing the prospects of each side to the dispute, the risks and costs of further litigation, the interests of the parties, and the benefits each side can gain through settlement. The settlement judge is strictly impartial and will not act as an advocate for any party, although they will be an advocate for the settlement of the case.
Settlement negotiations can give both parties a chance to talk about their needs and concerns. It is important to stay level-headed and keep the conversation polite and respectful, as negotiations can raise difficult and emotional issues. Before reaching a final and complete agreement, it is important to ensure that all disputed issues have been resolved and that both parties fully agree to the terms of the settlement. A settlement is usually a compromise where both parties give and take. It may be written by the parties themselves or drafted with the help of a neutral person, such as a mediator, referee, or other court staff.
Settlement has many advantages over going to trial. It can resolve disputes faster, cost less, and be more confidential. It also allows the parties to have more control over the outcome and avoid the risk of a judge deciding against them. However, it is important to note that settlement is a voluntary choice, and parties are not required to agree to anything during settlement talks or mediation. They can return to the court process at any time.
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The whistleblower has the burden of proof in whistleblower appeals
Whistleblowers are protected by law from retaliation, intimidation, threats, coercion, harassment, and discrimination. These protections are enforced by the U.S. Department of Labor, which carries out its mission through several offices and agencies, five of which enforce whistleblower and anti-retaliation laws. Whistleblowers perform an important service for the public and the Department of Justice (DOJ) by reporting evidence of wrongdoing. All DOJ employees, contractors, subcontractors, grantees, subgrantees, and personal services contractors are protected from retaliation for making a protected disclosure.
A protected disclosure is defined as a disclosure that meets two criteria: it must be based on a reasonable belief that a violation has occurred, and it must be made in accordance with the laws and rules that govern the handling and transmission of classified information. For example, it is not protected to disclose classified information to an unauthorized recipient, even if the whistleblower believes the information is evidence of waste, fraud, or abuse. However, a protected disclosure of classified information can be made to the Office of Inspector General (OIG).
In whistleblower appeals, the whistleblower has the burden of proving by a preponderance of evidence that they engaged in whistleblowing or other protected activity, and that this activity was a contributing factor in the agency's decision to threaten, propose, take, or not take a covered personnel action against them. The whistleblower must also demonstrate that their protected activity was a contributing factor in any unfavorable personnel decisions, but they do not need to prove that the employer acted with retaliatory intent.
The burden of proof for whistleblowers has been lessened by the U.S. Supreme Court, which ruled that whistleblowers only need to demonstrate that their protected activity was a contributing factor in an unfavorable personnel decision, rather than proving that the employer intentionally retaliated against them. This ruling specifically addressed retaliation claims under SOX, but it may influence the interpretation of other laws with similar language.
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Frequently asked questions
Whistleblowing means disclosing information that is evidence of a violation of any law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.
An ALJ is assigned to a whistleblower case shortly after it is docketed. The ALJ hearings are generally set for the most practical place for a hearing, like the town nearest to where most witnesses are located.
Witnesses testify and evidence is submitted. The ALJ independently considers the testimony and evidence to determine whether a whistleblower law has been violated and decides on the appropriate relief.
You should obtain an attorney experienced in whistleblower cases to represent you. Parties in ALJ whistleblower cases are frequently represented by an attorney, and the law can be complex.
Ex parte communications are those that occur outside the knowledge of opposing counsel or parties. They involve significant substantive issues of the case and could unfairly disadvantage other parties.
