September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Are Whistleblowers Protected Against Retaliation for Disclosing Antitrust Violations? [VIDEO]

Yes, the Criminal Antitrust Anti-Retaliation Act, which was signed into law on December 23, 2020, protects whistleblowers against retaliation for disclosing evidence of criminal cartel activity.

Who is protected against retaliation under the Criminal Antitrust Anti-Retaliation Act?

The Criminal Antitrust Anti-Retaliation Act protects any employee, contractor, subcontractor, or agent of an employer.

The Criminal Antitrust Anti-Retaliation Act does not apply where:

  1. the covered individual planned and initiated a violation or attempted violation of the antitrust laws;

  2. the covered individual planned and initiated a violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of the antitrust laws; or

  3. the covered individual planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws.

What whistleblowing is protected under the Criminal Antitrust Anti-Retaliation Act?

The Act protects an employee (1) providing information to an employer, a federal regulatory or law enforcement agency, or Congress concerning an act or omission the individual reasonably believes to be a violation of the antitrust laws (section 1 or 3 of the Sherman Act) or a violation of another criminal law committed in conjunction with a potential violation of the antitrust laws; or (2) participating in, or otherwise assisting, an investigation relating to such a violation.

Criminal prosecutions of Sherman Act violations are typically limited to intentional and clear violations such as price fixing, bid rigging, and market allocation among competitors (also known as “horizontal agreements”).  According to the Department of Justice’s Antitrust Resource Manual, price fixing generally involves any agreement between competitors to tamper with prices or price levels, or terms and conditions of sale for commodities or services.  Bid rigging generally involves an agreement or arrangement among companies to determine the successful bidder in advance of a bid letting at a price set by the successful bidder.  Horizontal customer allocation is an agreement among competitors at the same level of distribution of a product or service that each will service certain designated customers or classes of customers and will not attempt to compete, or will limit the manner in which they will compete, for the business of customers allocated to a competitor.

Note that some forms of protected conduct under the Criminal Antitrust Anti-Retaliation Act are also protected under other whistleblower protection laws.  For example, a disclosure about bid-rigging to obtain a contract with a federal agency can also be protected conduct under the Defense Contractor Whistleblower Protection Act and the False Claims Act.

What type of retaliation is prohibited against antitrust whistleblowers? 

The Criminal Antitrust Anti-Retaliation Act prohibits a wide range of retaliatory acts, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment.

The catch-all category of retaliation (“in any other manner” discriminating against a whistleblower) includes non-tangible employment actions, such as “outing” a whistleblower in a manner that forces the whistleblower to suffer alienation and isolation from work colleagues.  See Menendez v. Halliburton, Inc., ARB Nos. 09-002, -003, ALJ No. 2007- SOX- 5 (ARB Sept 13, 2011).  An employment action can constitute actionable retaliation if it “would deter a reasonable employee from engaging in protected activity.”  Id. at 20.

What is the burden of proof for an antitrust whistleblower in an antitrust whistleblower retaliation case?

The Criminal Antitrust Anti-Retaliation Act applies the causation standard and burden-shifting framework set forth in the AIR21 Whistleblower Protection Law.  Under that framework, the whistleblower prevails by proving that their protected whistleblowing was a contributing factor in the unfavorable personnel action taken by their employer.  The Department of Labor Administrative Review Board has emphasized that the standard is low and “broad and forgiving”; protected activity need only play some role, and even an “[in]significant” or “[in]substantial” role suffices.  Palmer v. Canadian Nat’l R.R., ARB No. 16-035, ALJ No. 2014-FRS-154, at 53 (ARB Sept. 30, 2016) (emphasis in original).  Examples of circumstantial evidence that can establish “contributing factor” causation include:

  • temporal proximity;

  • the falsity of an employer’s explanation for the adverse action taken;

  • inconsistent application of an employer’s policies;

  • an employer’s shifting explanations for its actions;

  • animus or antagonism toward the whistleblower’s protected activity; and

  • a change in the employer’s attitude toward the whistleblower after they engage in protected activity.

Once the whistleblower proves that their protected conduct was a contributing factor in the adverse action, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the whistleblower engaging in protected conduct.

What remedies or damages can a whistleblower recover in an antitrust whistleblower retaliation case?

A prevailing antitrust whistleblower is entitled to make-whole relief, which includes:

  • reinstatement with the same seniority status that the whistleblower would have had, but for the discrimination;

  • back pay, with interest; and

  • compensation for any special damages sustained as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorneys’ fees.

What is the deadline or statute of limitations to file an antitrust whistleblower retaliation case?

The statute of limitations for an antitrust whistleblower retaliation claim is 180 days from the date that the employee was first informed of the adverse action.

Where are antitrust whistleblower retaliation cases adjudicated?

An antitrust whistleblower retaliation case must be filed initially with OSHA, which will investigate the claim.  If OSHA determines that there is reasonable cause to believe that a violation occurred, OSHA can order relief, including reinstatement of the whistleblower.

Either party can appeal OSHA’s determination by requesting a de novo hearing before the DOL Office of Administrative Law Judges (OALJ), but an employer’s objection to an order of preliminary relief will not stay the order of reinstatement.  Once an antitrust retaliation claim has been pending before the DOL for more than 180 days, the whistleblower can remove the claim to federal court. 

© 2021 Zuckerman LawNational Law Review, Volume X, Number 366
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About this Author

Jason Zuckerman, Whistleblower Litigation Attorney, Washington DC  Law Firm
Principal

Described by the National Law Journal as a “leading whistleblower attorney,” Jason Zuckerman litigates whistleblowe r retaliation, whistleblower rewards, wrongful discharge, and other employment-related claims. His practice focuses on representing senior executives and senior professionals in high-...

(202) 262-8959
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