The administration revised its whistleblower investigations manual to apply a ‘reasonable cause’ standard
By Doug Chartier
LAW WEEK COLORADO
This year, employers could see an increased likelihood of being hit with a whistleblower retaliation claim once the Occupational Safety and Health Administration comes knocking.
The volume of OSHA whistleblower complaints across the board is expected to increase following key changes in the administration’s Whistleblower Investigations Manual that went into effect Jan. 28. The newest version of the manual advises investigators to apply a lower burden-of-proof standard than it had previously when opting to pursue retaliation claims.
OSHA enforces whistleblower protections under not just the Occupational Safety and Health Act, but 21 other federal statutes that include the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act and the Clean Air Act. Under the administration’s previous guidance, the employee had to establish all elements of a retaliation claim before OSHA could issue a merit determination against the employer. Now the administration will proceed under a new “reasonable cause standard.”
“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,” according to the revised manual, which also says this standard applies to all elements of an alleged violation.