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ARB Rules That Complaints about Theoretical Violations are not Protected Whistleblowing Activity under Dodd-Frank

On June 18, 2020, the U.S. Department of Labor Administrative Review Board (“ARB”) held that a complaint about a theoretical violation of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (“Dodd-Frank”) does not constitute protected activity under the whistleblower provisions of that statute.  Bryan Horn v. University First Federal Credit Union, ARB Case No. 18-0033 (June 18, 2020).


University First Federal Credit Union (“UFFCU”) hired Complainant as a financial service representative in 2015.  Throughout his employment, Complainant expressed his concerns that multiple UFFCU internal procedures were inadequate.  He also made suggestions for improvements to those procedures during an internal audit.

In early 2016, Complainant worked on processing a customer’s auto loan, which the customer closed at a different UFFCU branch.  That branch’s Acting Manager changed the name of the loan’s processor to reflect their branch, so they and the branch would get credit for processing the loan.

Complainant contacted a branch manager to discuss the loan because he believed it was not “legally and ethically right for someone to steal someone’s work.”  Complainant indicated he would resign that evening and then asked for time to consult with an attorney.  The next day, he expressed his desire to continue working; however, UFFCU told him he could resign or would be terminated.  Complainant resigned that day.  His resignation letter accused UFFCU of violating “ethics and banking laws.”

Complainant subsequently filed a complaint with OSHA, alleging that UFFCU terminated him in retaliation for engaging in activities protected by Dodd-Frank.

ARB’s Ruling

The ARB affirmed the Administrative Law Judge’s (“ALJ”) conclusion that Complainant did not engage in Dodd-Frank-protected activity.  On appeal, Complainant argued that his complaints should be entitled to protection because he had complained “that the lack of written or standardized or internal policies and procedures could lead to mistakes and violations of Dodd-Frank.”  The ARB rejected this argument, explaining:

This is incorrect because an employee does not engage in whistleblower activity by describing merely theoretical situations. Such a belief is too attenuated from the standard to be a reasonable belief of a violation of law and therefore failed to satisfy one of the required elements of his retaliation claim. Stated another way, mere speculation does not satisfy [Complainant]’s burden.


This decision underscores that plaintiffs must reasonably believe there was an actual violation of law, as opposed to a merely theoretical violation, to establish protected activity.

© 2023 Proskauer Rose LLP. National Law Review, Volume X, Number 202

About this Author

Lloyd B Chinn, Financial, Whistleblower Attorney, Proskauer Law Firm

Lloyd B. Chinn is a Partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd's practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media,...

Pinny Goldberg Labor and Employment Lawyer Proskauer Rose Law Firm

Pinny Goldberg is an associate in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in pre-litigation negotiations. Matters he works on include discrimination and harassment, wage and hour, wrongful discharge, whistleblowing and retaliation, covenants not to compete, breaches of fiduciary duty, unjust enrichment, and tort and contract claims. 


Heylee S. Bernstein Associate Proskauer Labor & Employment Employment Counseling & Training

Heylee Bernstein is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Heylee earned her J.D. cum laude from Harvard Law School, where she served as the President of the Committee on Sports and Entertainment Law. In addition, she was a Senior Article Editor for the Journal of Sports and Entertainment Law, and served as a Research Assistant in the Labor & Worklife Program.