Earlier this month, the U.S. Department of Labor (DoL) settled a whistleblower claim brought by Robert Whitmore, a former DoL recordkeeping official, for $820,000. Mr. Whitmore alleged that he complained that the DoL failed to adequately monitor and enforce its record-keeping requirements—thereby affording employers the opportunity to under-report on-the-job injuries and illnesses—and was discharged as a result of his complaint.

Background

Mr. Whitmore began his career with the DoL in 1972, and served as the Directorate of Evaluation and Analysis for the Office of Statistical Analysis from 1990 until he was discharged in 2009. In 2005, Mr. Whitmore began commenting to the press about OSHA recordkeeping requirement enforcement and claimed DoL “acquiesc[ence] in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA’s ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses.” Whitmore v. DoL, MSPB No. DC0752090890-I-1, at 3 (May 30, 2012). That year, Mr. Whitmore also “provided an affidavit supporting a co-worker … in her Equal Employment Opportunity (“EEO”) complaint for alleged discrimination and retaliation by her managers at OSHA.” Id. Mr. Whitmore alleged that, shortly after providing the affidavit, his supervisor changed his performance review from “highly effective” to “meets expectations,” marking the first time in 35 years that he failed to receive “outstanding” or “exceeds expectations” on a review. Id. at 4.

Over the next two years, Mr. Whitmore continued to issue public disclosures (e.g., serving as a source for a Charlotte, North Carolina newspaper’s series on “non-reported injuries in the poultry processing industry”), sent “emails highly critical of if not hostile to [his supervisor], copying his staff as well as OSHA officials[,]” and had disputes with his supervisors. Id. at 4–5. After a 2007 confrontation with his supervisor allegedly devolved into a “spitting match,” DoL placed Whitmore on administrative leave. Id. at 8. While on leave, “he testified before Congress regarding the underreporting of workplace injuries and illness, where he accused senior OSHA management of intentionally ignoring fraudulent data submitted by employers.” Id. at 11. In 2009, after the Washington Post published an article on his disclosures, DoL allegedly removed Mr. Whitmore from his position for “Disruptive and Intimidating Behavior, Conduct Unbecoming a Supervisor, and Inappropriate Conduct in the Workplace.” Id. at 12.

“[Mr.] Whitmore challenged his removal at the [Merit Systems Protection Board (“MSPB”)], alleging that the removal was an act of retaliation for his whistleblowing disclosures under 5 U.S.C. § 2302(b)(8).” Id. at 13. Further, he alleged retaliation for his EEO testimony under 5 U.S.C. § 2302(b)(9). Id. at 13-14. The MSPB determined that DoL met its burden and established that Mr. Whitmore “would have been removed regardless of his whistleblowing disclosures.” Id. at 17.

The Court of Appeals for the Federal Circuit, however, determined that the MSPB improperly “excluded or ignored evidence offered by Whitmore necessary to adjudicate Whitmore’s retaliation claim . . . [,]” and that MSPB, therefore, incorrectly held that “DOL had proven by clear and convincing evidence that Whitmore would have been removed regardless of his whistleblowing disclosures . . .  .” Id. at 2. The court vacated and remanded to the MSPB.

A few days before the rehearing, the parties settled the action for $820,000.

Implications

This sizeable settlement may signal the beginning of rigorous recordkeeping review by the DoL. Thus, employers should be sure to carefully scrutinize record-keeping policies and procedures to ensure accurate reporting, not only of on-the-job injuries and illnesses, but of disability, veteran, discrimination, and all other DoL recordkeeping requirements. Plus, the fact that the DoL was subject to suit in this action vividly illustrates that whistleblower actions know no boundaries.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower…

Steven J. Pearlman is a partner in the Labor & Employment Law Department, where he is Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group and Co-Head of the Whistleblowing & Retaliation Group.

Employment, Restrictive Covenant & Trade Secret, and Whistleblower Practice. Steven’s national practice focuses on defending companies in federal and state courts and in arbitration fora against the full spectrum of employment-related claims, including claims of executives; restrictive covenant violations; employee raiding; theft of trade secrets; whistleblower retaliation under the Sarbanes-Oxley Act, the Dodd-Frank Act and similar state laws; and wage-and-hour violations, including class, collective and PAGA actions.

Steven has successfully handled trials in multiple jurisdictions; prevailed in seeking and defending against applications for temporary restraining orders and preliminary injunctions; defended one of the largest Illinois-only class actions in the history of the federal courts in Illinois (over 90k putative class members); and prevailed following his oral arguments before federal and state appellate courts. He brings his litigation experience (beginning in 1998) to bear in counseling clients to minimize risk and avoid or prepare for success in litigation.

Investigations. Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has the unusual experience of testifying in federal court in connection with investigations. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Thought Leadership and Accolades. Steven was named Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers. Chambers has reported:

  • Steven is “one of the best in the country and has a lot of experience”;
  • Steven is as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field”;
  • He is thoughtful, attentive and demonstrates an acute understanding of matters top of mind for business-minded general counsel; and
  • “He is someone who can navigate the twists and turns of litigation without difficulty.”

Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a ”Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a U.S. Library of Congress Burton Award Winner for “Distinguished Legal Writing.”

Steven was appointed to Law360’s Employment Editorial Advisory Board and selected as a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is often quoted in leading publications such as The Wall Street Journal. The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal.

In 2024, Steven received the Excellence in Pro Bono Service Award from the United States District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association.

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