Last April, OSHA released its “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” which was intended to provide employers with guidance relating to how OSHA conducts a whistleblower investigation. As a part of that “clarification,” OSHA indicated that new (revised) whistleblower investigations would be released in the future. Fast-forward approximately one year and that promise is now a reality. OSHA has released its new Whistleblower Investigations Manual.
This new manual has made an important change in the whistleblower investigation process. Investigators are now instructed that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.” This is a shift from OSHA’s previous instructions, which were that investigators were to dismiss a case if complainant could not establish the prima facie elements of the relevant whistleblower statute.
Under this new position, investigators no longer consider whether the complainant can establish the elements of her claim, but instead they are to consider whether a reasonable judge could rule in complainant’s favor after weighing all the evidence. This shift may make it more difficult for OSHA investigators to find that a violation has occurred.
Recommendation for Employers
While the manual is written as guidance for OSHA investigators, it is also bears significance for employers who may potentially be involved in a whistleblower investigation. We recommend that employers review the new manual to familiarize themselves with the new investigative process.