Feb. 2 — The new OSHA Whistleblower Investigations Manual, issued Feb. 1, details the agency's revised requirements for deciding if a complaint should be fully investigated.
Also explained in the manual is when the agency may release or share investigative information.
While the 290-page manual is written for OSHA's staff investigators, the information is useful for anyone involved in a whistle-blower complaint. The manual (CPL 02-03-007) replaces guidance OSHA published in May 2015 (CPL 02-03-005) .
OSHA enforces whistle-blower provisions in 22 statutes, including the Occupational Safety and Health Act and laws covering transportation safety and financial fraud. In 2015, the agency opened investigations into 3,288 cases.
The new standard for when to conduct an investigation is whether there is “reasonable cause” to believe a violation of a whistle-blower statute occurred, the manual says. The reasonable cause standard has been in place since April 2015, however it wasn't incorporated into the investigations manual until the new edition.
The manual says, “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.”
“The evidence does not need to establish conclusively that a violation did occur,” the guidance continues.
Previously, OSHA said a “preponderance of evidence” must show a worker's whistle-blower actions led to the employer taking actions against the employee.
Jason Zuckerman, an attorney and principal of Zuckerman Law who represents whistle-blowers, told Bloomberg BNA Feb. 2 that the manual is consistent with last year's memorandum.
“This clarification of the reasonable cause standard is critical to avoid a misperception by investigators that they need ‘smoking gun' evidence in order to issue a merit finding,” Zuckerman said.
During the investigative stage, the whistle-blower is at a significant disadvantage, compared with the employer, because the whistle-blower lacks access to documents and witnesses, Zuckerman said. It's appropriate that a reasonable cause finding doesn't necessarily require as much evidence as would be required at trial to establish unlawful retaliation by a preponderance of the evidence.
Meagan Newman, a Seyfarth Shaw LLP partner who often represents employers, told Bloomberg BNA Feb. 2, “Arguably, the new manual taken together with the April 2015 memorandum makes it tougher for investigators to find in favor of respondents.”
No longer is the question whether complainants can establish the elements of their claims, but rather whether reasonable judges could rule in the complainants' favor after weighing the evidence, Newman said.
The chapter on when OSHA can disclose information lets all the parties involved in a case know what to expect, Newman said.
“When representing an employer in a whistle-blower investigation there are many factors at play in determining what supporting evidence you may provide to the investigator,” Newman said. “Sometimes there is a very real concern about the sharing of that information with the complainant and how the complainant might react.”
For example, Newman said, the new manual acknowledges the risk of workplace violence and allows an investigator to provide a summary of the employer’s response, rather than a particular document, when there is a concern that the disclosure of a document might lead to a violent or threatening incident.
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The newly revised Whistleblower Investigation Manual is available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf.
The expired 2015 edition of the manual is available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-005.pdf.
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