OSHA issues new whistleblower investigations manual with aggressive new standard
By Elizabeth Bowersox
Employers are familiar with the Occupational Safety and Health Administration’s (OSHA) enforcement of workplace safety standards, but OSHA also enforces the whistleblower provisions of 21 other federal laws in addition to the Occupational Safety and Health Act, including the Affordable Care Act, Clean Air Act, Sarbanes-Oxley, and Pipeline Safety Improvement Act. A whistleblower is an employee who makes a complaint under one of these acts. Reporting such a complaint is considered protected activity. If the employer takes an adverse employment action against the employee (such as firing or demoting the employee) after the protected activity, the employee can file a whistleblower complaint with OSHA.
Now, OSHA has clarified the standards of proof it will use when investigating a whistleblower complaint. In January 2016, OSHA published a new Whistleblower Investigations Manual. The new manual lowers the burden of proof required for OSHA to issue a merit determination against an employer. Under the previous standard of proof, the complainant needed to establish all the elements of the retaliation claim. Even if he did so, the investigation would still be dropped if the employer could show clear and convincing evidence that it would have taken the same action against the employee regardless of the employee’s protected action.
Now, however, OSHA need only find “reasonable cause to believe a violation occurred.” The manual specifically notes that this is “less evidence as would be required at trial to find unlawful retaliation.” In other words, OSHA can issue a merit determination without actually finding that retaliation for whistleblowing did in fact occur, so long as a judge could potentially find a violation. Although an employer demonstrates it would have taken the same employment action regardless of the protected activity, under the new manual OSHA could make a retaliation finding against the employer.
In the last five years, OSHA has investigated 26,421 whistleblower complaints. Slightly less than 2% resulted in a merit determination. (This number does not include complaints that settled early in the investigation process). Once it has made a merit determination, OSHA will attempt to settle the complaint with available remedies to the employee, including reinstatement and back pay. Employers who refuse to settle may face expensive litigation in front of a district court. The new standard means that OSHA could find against more employers in the future.
Employers looking to avoid a whistleblower investigation should remember that workers have a right to speak up, without fear of retaliation, when they believe that their safety and health is at risk. Managers should be trained on how to recognize a potential protected action under the statutes that apply to the employer’s industry. Finally, as always, clear documentation regarding performance problems and employee discipline is key when later trying to show that an employment action was not retaliatory.