On January 8, 2019, the DOL announced Secretary Alexander Acosta’s appointment of three new members to the Administrative Review Board (ARB), filling vacancies that had been open for months, and marking the first appointments to the ARB of the Trump Administration.

The ARB issues final agency decisions on behalf of the Secretary of Labor in cases arising under a number of worker protection laws, including the whistleblower-protection provision of SOX. Cases considered by the ARB arise upon appeal from a decision of an ALJ and the parties may appeal the ARB’s decisions to federal district or appellate courts.

All three new appointees were chosen from within the DOL. William Thomas Barto, who will serve as the chair of the ARB, previously served as an Administrative Law Judge for the DOL. James A. Haynes most recently served as an Appellate Administrative Law Judge for the Employees Compensation Appeals Board. Daniel T. Gresh previously worked as an attorney for the ARB. The new members will serve two-year terms. The ARB consists of a maximum of five members and two vacancies still remain open.

The membership of the ARB is significant, as previous boards have issued widely-divergent decisions regarding the scope of the whistleblower protection laws, which have in turn influenced the courts’ interpretation of those laws. For example, in Platone v. FLYi Inc., ARB Case No. 04-154 (Sept. 29, 2006), the Bush-era ARB introduced an employer-friendly standard for a SOX whistleblower complaint, requiring the whistleblower to describe conduct that “definitively and specifically” relates to one of the six categories of unlawful acts set forth in the statute. That standard was adopted by the First, Second, Fourth, Fifth and Ninth Circuits. But, in 2011, the Obama-era ARB abrogated Platone in Sylvester v. Parexel International LLC, No. 07-123 (ARB May 25, 2011), and dramatically lowered the bar for what constitutes “protected activity” under SOX, holding that an employee’s complaint need not “definitively and specifically” relate to an enumerated legal violation, and that complainants only had to show that they reasonably believed the conduct complained about violated one of the laws enumerated in SOX. Federal courts, including the Second, Third, Sixth and Tenth Circuits, subsequently adopted the ARB’s more liberal Sylvester standard.

The ARB has not issued any decisions since July 2018. This more than five-month hiatus is unprecedented since the ARB was established in May 1996, and we expect that the board will issue a flurry of decisions in the coming months as its works through a backlog of cases. Given the new membership of the board, we would not be surprised to see further developments in the ARB’s shifting interpretation of the whistleblower laws.

We will be monitoring the ARB’s activities closely and will report on future developments of interest.

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Photo of Lloyd B. Chinn Lloyd B. Chinn

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…

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, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.

Photo of Pinchos Goldberg Pinchos Goldberg

Pinny Goldberg is a senior counsel 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…

Pinny Goldberg is a senior counsel 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.

In addition to handling litigation and dispute resolution, Pinny regularly advises clients on a wide variety of employment issues, including drafting, reviewing and revising handbooks and workplace policies. He also addresses questions and concerns related to hiring, wage and hour issues, employee leave, performance problems, terminations of employment, and separation agreements and releases.