Benefit Fund Whistleblower Gets Partial Victory

A union benefit fund trustee retaliated against a fund employee by placing her on leave after she cooperated with a Labor Department investigation into the trustee’s conduct, the Ninth Circuit held.

Cooperating with a DOL investigation is protected conduct under the Employee Retirement Income Security Act’s anti-retaliation provision, the court held Dec. 4. But it declined to decide whether the employee’s other conduct—attempting to report the trustee to the Operative Plasterers’ and Cement Masons International Association—qualified as whistleblower activity protected by ERISA.

In declining to address this issue, the court side-stepped a circuit split it first addressed in 1993. ...