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Who Wants to Be a Whistleblower? OSHA’s New Whistleblower Investigations Manual Makes It Easier to Be a Whistleblower

Labor & Employment Alert David B. Kern, Fred Gants, Kerry M. Mohan

On January 28, 2016, the Occupational Safety and Health Administration (OSHA) published its new Whistleblower Investigations Manual (Manual) significantly changing the burden of proof before OSHA finds that such a claim has merit. You may ask yourself, how does this affect me? Doesn't OSHA only address health and safety issues? Typically, yes. But when it comes to whistleblowers, OSHA is responsible for investigating and enforcing 22 federal whistleblower statutes, including, among others, the Federal Railroad Safety Act, the Sarbanes-Oxley Act, and the Surface Transportation Assistance Act. Accordingly, employers in virtually every industry are subject to OSHA's jurisdiction when it comes to whistleblower complaints.

What Is a Whistleblower?

A whistleblower violation is very similar to a retaliation claim. Broadly speaking, a whistleblower is an employee who engages in "protected activity" by complaining about suspected unlawful activity or unsafe conditions. The complaint need not always be made to the federal government or be in writing. A whistleblower cannot be disciplined, terminated, or otherwise harassed because of his or her complaint. As such, an employee likely to be terminated for poor performance can try to potentially insulate him or herself from discharge by filing a complaint of suspected unlawful or unsafe activity.

OSHA's Lowest Merit-Finding Standard for Whistleblowers.

OSHA's new Manual states that an investigator should find merit to a whistleblower complaint if "OSHA has reasonable cause to believe a violation occurred," such that a judge could find retaliation. OSHA's new position is consistent with its April 2015 "clarification," which provided:

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. Accordingly, OSHA's investigation must reach an objective conclusion—after consideration of the relevant law and facts—that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.

(emphasis added).

OSHA's new position is different from its prior position that whistleblower complaints would be dismissed if the complainant could not establish a prima facie case or if the employer could show, by clear and convincing evidence, that it would have taken the same adverse employment action in the absence of the protected activity. In other words, OSHA has lowered the initial hurdle for whistleblower complainants. Consequently, OSHA could find merit in many more whistleblower complaints based on its new position.

OSHA's Recent Aggressiveness in Finding Merit.

OSHA's lower merit-finding standard is all the more troubling based on OSHA's recent aggressiveness in pushing the boundaries to find merit in "test" cases. Recently, OSHA issued a lawsuit against an employer because it disciplined employees for failing to immediately report their injuries, no matter how minor. In another case, OSHA has taken the position that an employer unlawfully retaliated against a "whistleblower" by disciplining him for a safety rule violation that resulted in a workplace injury. In both instances, OSHA has taken the position that an employee's injury or report of an injury, even if it is untimely or the result of a rule violation, constitutes "protected activity" and, consequently, employers cannot discipline employees based on the alleged protected activity. Although it is unclear whether OSHA's interpretations will withstand judicial scrutiny, employers may wish to reconsider their rules regarding safety violations and the duty to report workplace injuries.

What Does OSHA's New Interpretation and Aggressiveness Mean?

OSHA's new Manual and recent aggressiveness is a clear signal that OSHA intends to find merit in cases it previously would not have. That is problematic for employers, as an OSHA merit finding can be a difficult item to overcome and expensive to defend. After a merit finding, OSHA often views employers as being "guilty until proven innocent," demanding complete back pay, compensatory and punitive damages, and potentially reinstatement for the alleged whistleblower. Unless an employer is willing to bow to OSHA's demands, its only alternative is to engage in costly and protracted litigation.

If you have questions about whistleblower complaints, OSHA investigations, or other employment related issues, please contact David B. Kern at (414) 277-5653/[email protected], Fred Gants at (608) 283-2618/[email protected], or your Quarles & Brady attorney.

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