In Fordham v. Fannie Mae, Administrative Review Board (ARB) No. 12-061 (Oct. 9, 2014), the ARB issued an opinion that could have significant ramifications for employers seeking to establish affirmative defenses in SOX whistleblower administrative hearings. In Fordham, the administrative law judge (ALJ) dismissed the complainant’s claim, finding that the complainant had not met the burden of showing that her protected activity was a “contributing factor” to the employer’s adverse employment action. The ARB reversed, holding that evidence that the employer would have taken the same action against the employee, even if the employee had not engaged in protected activity, cannot be taken into account until the ALJ first decides whether the SOX complainant has met her burden of proving that her conduct was a contributing factor in the employer's adverse decision. The ARB reasoned that allowing the employer’s evidence to come in earlier would permit ALJs to weigh the employer’s evidence by a “preponderance of the evidence” standard and not by SOX’s required “clear and convincing” standard to establish an affirmative defense in the standard burden-shifting framework. As a result, Section 806 claims have two separate burdens of proof: a preponderance of the evidence burden for the whistleblower, and a higher, clear and convincing burden for the employer.