By James L. Curtis and Meagan Newman
Following through on its April 2015 “clarification” of the investigative standard in whistleblower matters, OSHA issued a new whistleblower investigations manual overnight restating the mission of its investigators.
The former manual instructed investigators to dismiss a case if complainant could not establish the prima facie elements of the relevant whistleblower statute. The former manual went on to state that even where the prima facie elements are present, 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.
The new manual now instructs investigators that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.” This change is consistent with the April 2015 memorandum issued by the Directorate of Whistleblower Protection Programs. The memorandum 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.”
The question 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. Yet, the deletion of the instruction that a case should be dismissed when the employer presented clear and convincing evidence that the adverse action would have been taken regardless of protected activity is potentially troubling for employers.
The manual also includes a new chapter concerning public disclosure of information obtained during whistleblower investigations. Employers facing current or potential claims under any of the 22 whistleblower statutes investigated by OSHA should carefully evaluate the new manual and consult with their defense counsel.