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Revised OSHA Whistleblower Investigations Manual adopts “reasonable cause” standard

OSHA Whistleblower Investigations ManualIn late January 2016, the Occupational Health and Safety Administration (“OSHA”) issued its revised Whistleblower Investigations Manual, which outlines the procedures for handling retaliation complaints under the various whistleblower statutes that OSHA is charged with overseeing.  OSHA’s revised manual follows through on OSHA’s April 2015 “clarification” of the investigative standard in whistleblower matters.

The former Whistleblower Investigations Manual told investigators that they must dismiss a case if the complainant could not establish his or her prima facie case under the relevant whistleblower statute.  Additionally, the old manual stated that even where a complainant could establish the prima facie elements under the applicable statute, an investigation of the complaint should not be conducted if the respondent demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the complainant’s protected activity.

New Whistleblower Investigations Manual Adopts “Reasonable Cause” Standard

Conversely, the new Manual instructs investigators that applicable burden of proof is whether “OSHA has reasonable cause to believe a violation occurred.”  This change is consistent with the April 2015 memorandum mentioned above, which stated:

The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides during the investigation, but does not generally require as much evidence as would be required at trial.  Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant.

According to the new Whistleblower Investigations Manual:

For all whistleblower statutes enforced by OSHA, the investigative standard is whether there is reasonable cause to believe that a violation occurred. This standard applies to each element of a violation.  Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant. The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides or otherwise gathered during the investigation, but does not generally require as much evidence as would be required at trial. Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred.

Thus, while the new Whistleblower Investigations Manual’s reasonableness standard requires evidence to support each element, it does not generally require as much evidence as would be required at trial.  Employers may argue that OSHA’s reasonableness standard is too lax on the grounds that a complainant must now only show that a reasonable judge would find in his or her favor after weighing all the evidence.  However, potential complainants may also argue that the reasonableness standard imposes a higher burden of proof upon their claim because the questions now is not whether the complainant can establish the elements of her claim, but rather whether a reasonable judge could rule in complainant’s favor after weighing all the evidence.  Time will tell who is right on this issue.

New Whistleblower Investigations Manual Makes it Tougher on Employers

In an article from Bloomberg Legal, Jason Zuckerman, an attorney and principal of Zuckerman Law who represents whistleblowers, told Bloomberg, “This clarification of the reasonable cause standard is critical to avoid a misperception by investigators that they need ‘smoking gun’ evidence in order to issue a merit finding.”  During the investigative stage, the whistleblower is at a significant disadvantage, compared with the employer, because the whistle-blower lacks access to documents and witnesses, Mr. Zuckerman said.  It’s appropriate that a reasonable cause finding doesn’t necessarily require as much evidence as would be required at trial to establish unlawful retaliation by a preponderance of the evidence.

Meagan Newman, a Seyfarth Shaw LLP partner who often represents employers, told Bloomberg, “Arguably, the new manual taken together with the April 2015 memorandum makes it tougher for investigators to find in favor of respondents.”  No longer is the question whether complainants can establish the elements of their claims, but rather whether reasonable judges could rule in the complainants’ favor after weighing the evidence, Ms. Newman said.

New Whistleblower Investigations Manual Addresses Public Disclosure of Information Obtained During Investigation

The Whistleblower Investigations Manual also includes a new chapter regarding the public disclosure of information obtained during whistleblower investigations.  “When representing an employer in a whistleblower investigation there are many factors at play in determining what supporting evidence you may provide to the investigator,” Ms. Newman said.  “Sometimes there is a very real concern about the sharing of that information with the complainant and how the complainant might react.”  For example, the new manual acknowledges the risk of workplace violence and allows an investigator to provide a summary of the employer’s response, rather than a particular document, when there is a concern that the disclosure of a document might lead to a violent or threatening incident, Ms. Newman said.

* Photo cred.: blog.intelex.com

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