A panel of the Eighth Circuit Court of Appeals recently ruled in a way that limited the enforcement authority of the United States Department of Labor (“DOL”). In BNSF Railway Co. v. Dept. of Labor, a three-judge panel of the Eighth Circuit reversed an important ruling by the DOL tribunal, the Administrative Review Board. Based on the administrative proceedings, the DOL tribunal determined that the employer flouted Federal law when firing a whistleblower, Dale Gourneau, because he reported serious safety violations by the employer to the Federal Occupational Health and Safety Administration. Given the clear record of the employer’s retaliation in response to the whistleblowing by Mr. Gourneau, the DOL tribunal ordered the employer to reinstate Mr. Gourneau, to provide him backpay, to pay him monetary damages, and to reimburse him for attorney’s fees and litigation costs incurred to hold the employer accountable.
The Eighth Circuit panel in this case rationalized reversal of the DOL tribunal by declaring that the tribunal deprived the employer of its rights under the United States Constitution. Specifically, this Eighth Circuit panel concluded that the DOL tribunal’s administrative proceedings improperly denied the employer access to a jury trial under the Seventh Amendment and, moreover, that the whistleblower claim decided by the tribunal somehow does not implicate the broader regulatory regime governing employers.
In other words, this case provides another example of courts applying fundamental rights to corporations as if they were people. In addition, this case overlooks the essential role that whistleblowers and whistleblowing claims serve in enforcing both statutory and regulatory regimes. Put simply, labor & employment law and civil rights requirements would have little practical value if people with evidence of legal violations were not to report those violations as whistleblowers do. This case also illustrates how agency enforcement power has diminished significantly since the Supreme Court decision in Loper Bright Enterprises v. Raimondo. In that case, the majority opinion overturned many decades of settled precedent to give judges the authority to second guess agency interpretation and application of the statutory and regulatory regimes for which the agencies are responsible.
