In addition to its focus on worker safety, OSHA is the front-line agency under the Department of Labor responsible for investigation and enforcement of various whistleblower laws. For those whistleblower laws administered by OSHA, a case is initiated when an employee submits a complaint to OSHA alleging unlawful retaliation for blowing the whistle. OSHA is then charged with, first, assessing whether the complaint alleges a prima facie case of retaliation and, second, if so, investigating the complaint to determine whether it has merit.
Given OSHA’s important gatekeeper role in the administrative process, the standard it applies to determine whether a complaint has merit is significant to companies subject to whistleblower laws. On April 20, 2015, OSHA’s Acting Director of the Directorate of Whistleblower Protection Programs issued a memorandum entitled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations.” This memorandum, issued to OSHA’s Regional Administrators and Whistleblower Program Managers, sets forth the investigative standard OSHA applies to its whistleblower investigations.
Companies subject to whistleblower laws administered by OSHA should note that “OSHA issues merit findings when there is reasonable cause to believe that a violation of the relevant whistleblower statute has occurred.” Importantly, as the memorandum explains, “the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. 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. . . . OSHA must believe that a reasonable judge could rule in favor of the complainant.”
To obtain a merit finding, therefore, the employee need not prove that a violation did occur. Instead, she need only present sufficient evidence suggesting that a reasonable judge could conclude there was a violation. This relaxed standard may result in more merit findings, encouraging more employees to file whistleblower complaints and subjecting companies to increased scrutiny.
Clarification of the Investigative Standard for OSHA Whistleblower Investigations, OSHA Directorate of Whistleblower Protection Programs (April 20, 2015).