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OSHA update lightens load for whistleblowers

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Whistleblowers will have an easier burden of proof to meet in the initial evaluations of their complaints under a recent update to the Occupational Safety and Health Administration's whistleblower manual.

Effective Jan. 28, the agency updated the manual outlining procedures and other information about the handling of retaliation complaints under the whistleblower statutes that OSHA is responsible for enforcing.

The manual now directs investigators to evaluate complaints according to a reasonable cause standard, which means that all the evidence gathered could allow a reasonable judge to rule in favor of the complainant. Previously, investigators had to apply a stricter preponderance of the evidence standard in evaluating whistleblower complaints, but the complaining party now does not have to prove conclusively that a violation occurred, legal experts said.

“The biggest thing is it's making it a lot easier for a complaint to go forward,” said Edwin Foulke, an Atlanta-based partner at Fisher & Phillips L.L.P. and a former assistant secretary of labor.

The agency enforces the whistleblower provisions of the Occupational Safety and Health Act and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

The number of whistleblower complaints received by OSHA has skyrocketed over the last 10 years, from 1,934 in fiscal year 2005 to 3,288 in fiscal year 2015, although only 24.4% of complaints resulted in positive outcomes for the complainant, according to data published by the agency. (See chart below.)



The shift in the burden of proof makes it critical for employers to fully document why they take adverse action against an employee, said Kara Maciel, a Washington-based founding partner and chair of the labor and employment practice group of Conn Maciel Carey P.L.L.C.

“If you have all that documented very well in someone's performance file, you can use that evidence in responding to OSHA in their investigation to establish that the complainant cannot meet this new reasonable cause standard,” she said.

Employers may be unaware that OSHA has authority to order them to rehire whistleblowing employees, which can create human resources challenges in reintegrating and preventing future retaliation against the employee, said Punam Kaji, a Houston-based attorney with Haynes and Boone L.L.P.

“It becomes a very fragile or delicate situation in terms of working that employee back in,” she said.

OSHA has been known to go to court to enforce the rights of whistleblowers, Ms. Kaji said. In May 2015, the United States District Court for the Southern District of Alabama in Mobile, Alabama, granted the Secretary of Labor's request for a restraining order that limited how Lear Corporation Eeds and Interiors Inc. and Renosol Seating L.L.C. based in Southfield, Michigan, could manage its employees while OSHA conducted its whistleblower investigation before it actually determined whether or not the employer had illegally retaliated against the employee.

“It's really an unusual course of events when the Secretary of Labor can go to a federal court as an initial matter and restrain the employer from doing any kind of retaliatory act before they've even completed an investigation and determined that there was a violation,” she said.