OSHA Clarifies Standards for Whistleblower Investigations

The Occupational Safety and Health Administration (OSHA) has issued a new memo to clarify the investigative standards it has in place for its whistleblower investigations. There are more than 20 whistleblower protection laws subject to OSHA enforcement. The agency investigates whistleblower retaliation complaints that come through and puts forth merit findings whenever there is any reasonable cause to believe that retaliation did occur.

The memo included four key clarifying elements of what exactly constitutes reasonable cause:

• Each element of a violation should have its own supporting evidence. However, there does not necessarily need to be as much evidence as a trial would require. Instead, after going through all of the evidence presented by the complainant and the employer, OSHA must simply believe a reasonable judge would rule in the complainant’s favor if it, too, is to rule in favor of the complainant.
• The conclusion of an OSHA investigation must be objective, taking into account all relevant facts and laws affecting the case. There does not need to be conclusive evidence stating a violation did occur — the standard is merely based on what a reasonable judge would decide.
• OSHA has a greater responsibility to determine if there is reasonable cause to believe the presence of a violation than the plaintiff’s responsibility to demonstrate a prima facie allegation that would be enough to launch an investigation.
• OSHA is not necessarily required to resolve all possible pieces of conflicting evidence or make conclusive determinations as to the credibility of a complainant to find reasonable cause to believe there was a violation.

If you have any questions about any of these elements of an OSHA whistleblower claim, contact Steve Kardell at Whistleblower Law for Managers.