Large employers could expect to see an even greater increase in whistleblower complaints after new guidance from the Occupational Health and Safety Administration relaxes some of the standards for investigators who are given the task of determining if violations of whistleblower law exist.
The revisions to OSHA’s Whistleblower Investigations Manual went into effect on January 28. In these revisions, OSHA says the investigative standard is now whether an investigator has “reasonable cause” to believe a violation occurred. Under this standard, a “reasonable judge could rule in favor of the complainant.”
For reasonable cause to exist, there must be evidence supporting every element of a violation. However, merit findings do not need as much evidence at trial, as reasonable cause is determined by OSHA before the hearings occur.
Previous rule was more stringent
This new guidance replaces the previous, more stringent standard, which required complainants to show protected conduct or behavior was a primary contributing factor in any adverse personnel action that allegedly occurred. Even if whistleblowers met this requirement, the complaint could actually be dismissed after that point if the employer established, through convincing evidence, that it would have taken the same adverse personnel action regardless of the presence of any protected activity.
With this change, employers are gearing up for more potential whistleblower lawsuits, as another barrier has been removed for would-be whistleblowers.
For the guidance and advice you need when preventing and responding to whistleblower claims, contact the team of trusted Dallas attorneys at Whistleblower Law for Managers today.