In November, a Fifth Circuit panel affirmed the NLRB’s $30,000 award in a retaliation case based on the employer’s handling of a whistleblower. Halliburton Co. v. Administratve Review Board, U.S. Dep’t of Labor, No. 13-60323. The full court has now denied the petition for en banc review, by the close margin of 7 judges for review and 8 against. A 3-judge dissent criticizes the “ad hoc nature” of the panel opinion and warns that it will lead to confusion about what specific conduct can amount to a materially adverse employment action in the context of a retaliation claim.
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