[Last updated March 13, 2007]

IV. Burden of proof and production

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F. Blacklisting; motive; loss of employment opportunity

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IV F Orchestration of reference; loss of employment opportunity not required for recovery in blacklisting case

In Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), the Secretary concluded that the ALJ erred in determining that a blacklisting complaint could not be supported where the Complainant orchestrated a reference request to determine the content of a reference. Questioning whether the record established a motivation to orchestrate a reference request, and pointing out that as far as the person who made the negative reference knew, the request for a reference was legitimate, the Secretary held that the fact that Complainant would not have lost an employment opportunity due to Dart's improper statement should not shield Dart from liability because its statement "'had a tendency to impede and interfere with [Complainant's] employment opportunities.'" Leideigh v. Freightway Corp., 88-STA-13 (Sec'y June 10, 1991), slip op. at 3.

The Secretary found that "effective enforcement of the Act requires a prophylactic rule prohibiting improper references to an employee's protected activity whether or not the employee has suffered damages or loss of employment opportunities as a result." Cf. Precision Electric and Int'l Bro. of Elec. Workers, Local Union 441, 1994 NLRB LEXIS 146 at *9 (Threatening to blacklist employees violates the National Labor Relations Act); Highland Yarn Mills, Inc. and Amalgamated Clothing and Textile Workers Union, 1993 NLRB LEXIS 473 at *66, aff'd and mod. on other grounds and enf'd, 313 NLRB 193 (1993) (same).

[STAA Whistleblower Digest IV F]
BLACKLISTING; POLICY OF NO-REFERENCE OR MINIMAL INFORMATION DOES NOT ESTABLISH THAT THE RESPONDENT WAS TRYING TO PREVENT THE COMPLAINANT FROM OBTAINING A NEW JOB; SUBJECTIVE FEELING BY WITNESS IS ALSO INSUFFICIENT

In Ramirez v. Frito-Lay, Inc., ARB No. 06-025, ALJ No. 2005-STA-37 (ARB Nov. 30, 2006), PDF | HTM the Complainant alleged that, by refusing to provide information about his prior employment, the Respondent blacklisted him in violation of the STAA. The ARB, however, found that the Complainant failed to meet his burden of proving that the Respondent had provided information that prevented the Complainant from obtaining prospective employment with a new employer. The Respondent had initially followed a "no reference" policy, which only provided a toll-free number for a prospective employer to verify employment with the Respondent. The ARB found that the assistant who provided the toll-free number to the prospective employer did not know the Complainant and was not trying to keep him from getting a new job. When pressed by the prospective employer's lawyer, who knew that under new DOT regulations the Respondent was required to give more than just dates of employment, the Respondent's legal office provided confirmation that the Complainant had passed a drug screen test and had no reportable accidents. The Complainant was later hired by the new employer.

The Complainant admitted that he did not know if anyone from the Respondent was trying to prevent him from obtaining a new job. His only evidence consisted of a comment from a supervisor from his new employer that the Complainant must have done something pretty bad if the Respondent did not want to answer questions about his employment. The ARB found that a "gut feeling" does not prove blacklisting. Rather there must be evidence of a specific act.

[STAA Whistleblower Digest IV F]
BLACKLISTING; COMPLAINANT'S SUBJECTIVE FEELING THAT HE IS BEING BLACKLISTED IS INSUFFICIENT PROOF TO ESTABLISH BLACKLISTING

In Anderson v. Jaro Transportation Services, ARB No. 05-011, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the Complainant claimed that after he was fired, a company that had contracted with his employer had provided information to a potential employer that he had been discharged, and he had not been hired as a result. The Complainant, however, did not know what the company had told the potential employer. The ARB held that the Complainant was required to show that a specific act of blacklisting had occurred and that "a whistleblower's subjective feeling that an employer blacklisted him is insufficient to establish blacklisting." USDOL/OALJ Reporter at 6 (footnote omitted). Therefore the ARB denied the Complainant's blacklisting complaint.

IV F Reference to former employee's discrimination suit in response to request for reference; motive

In Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), the Secretary held that the ALJ erred in concluding that the Respondent did not act out of a discriminatory motive when it gave information about the Complainant's previous STAA case. The Secretary found that there was direct evidence of a retaliatory motive when the office manager of the facility that supervised the Complainant acknowledged providing information about the Complainant's previous STAA case to another trucking company. Specifically, the office manager stated that the Complainant "took us to court [filed an STAA complaint]" and the Secretary ruled against the Respondent; he conceded he did not like the fact that Complainant had filed a complaint against the Respondent and stated that he had no use for Complainant. In his hearing testimony the office manager admitted he made that comment because Complainant had filed a complaint against the Respondent. The Secretary cited in support of his ruling Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977), in which a former employer was found to have illegally retaliated against the charging party when it responded to a request for a reference by pointing out the former employee's Title VII charge against it and conceded that it was "not pleased" by that filing.

[Editor's note: In his recommended decision, the ALJ had focused on his finding that, although the officer manager referred to the prior suit and his feelings about it, he did so only after being deliberately provoked by an inquiry into whether the Complainant was a troublemaker. The ALJ, believing that to support a claim of blacklisting, there must be an intent on the part of the former employer to hinder the complainant's employment opportunities, concluded based on the evidence that the officer manager did not have that intent. See Earwood v. Dart Container Corp., 93-STA-16 (ALJ Sept. 12, 1994), slip op. at 17-18, reversed on this issue (Sec'y Dec. 7, 1994). The Secretary's ruling, however, appears to be based on different inferences about motive drawn from the evidence, and arguably, the ALJ's view of the requirement of intent to hinder employment opportunities may not have been rejected.]