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.
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.