The ARB upheld a damages award in favor of a whistleblower after his former employer purportedly “blacklisted” him by providing an apparently negative employment reference to a prospective employer. Timmons v. CRST Dedicated Services, Inc., ARB Case No. 14-051 (Sept. 29, 2014).  This underscores the impact whistleblower laws have on employers’ post-termination conduct.

Background

Complainant Grant Timmons (Complainant) worked as a truck driver for CRST Dedicated Services, Inc. (Company). During his employment, Complainant allegedly voiced concerns about job safety. The Company subsequently terminated his employment, and he filed a whistleblower complaint under the Surface Transportation Assistance Act of 1982 (STAA).  The parties settled, and the settlement agreement contained a non-disparagement clause providing that the Company would not make any statements damaging to Complainant’s professional reputation.  Complainant later applied for a driver position with another company, which received an electronically generated employment verification report from the Company allegedly providing that the Company terminated Complainant’s employment because he did not meet company standards and he was not eligible for rehire.  According to Complainant, he would have been hired but for the Company’s negative report.  Complainant filed a complaint with OSHA alleging that he was “blacklisted” in retaliation for complaints during his employment.  An ALJ ruled that Timmons’ protected whistleblowing activity contributed to CRST’s negative employment reference, and the Company appealed to the ARB.

ARB’s Decision

Stressing that STAA regulations provide a cause of action to whistleblowers who are blacklisted, the ARB ruled that there was substantial evidence to support the ALJ’s finding that the Company blacklisted Complainant in retaliation for his protected activity.  The ARB rejected the Company’s argument that the negative employment verification was unintentional, noting that the Company’s Human Resources department ordered an employee to add negative details to Complainant’s employment record.

Implications

This decision serves as a reminder to employers of the need to be cautious about risks attendant to adverse actions against a whistleblower even after the employment relationship has ended.