OSHA Releases Memo on Whistleblowers

The Occupational Safety and Health Administration (OSHA) has released a new memo on whistleblower investigations. A "whistleblower" is defined as anyone who steps forward to report an employer for a safety violation or hazard. Unfortunately, it's not uncommon for employers to hire or issue other consequences to such whistleblowers, discouraging other employees from reporting safety violations in the future.

There are currently more than 20 whistleblower protection laws recognized by OSHA. When a safety violation is reported, and it is believed that the employer has sought retaliation against the whistleblower for the report, OSHA typically issues a merit in which they believe that retaliation has occurred. Under the Department of Labor (DOL) whistleblower protection laws, this merit may include a preliminary order to ensure the employee "is made whole again." What exactly does this mean? Well, to make an employee whole again usually consists of job reinstatement, reimbursement of lost wages, compensatory damages, attorney fees (if applicable) and other forms of punitive damages.

According to OSHA's latest memo, the reasonable cause standard maintains a lower merit when compared to the evidence standard. This means OSHA can issue a merit if it has reasonable suspicion that an employer has sought retaliation against a whistleblower.

"Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing," wrote OSHA in the memo. "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."

The memo also provides clarification on the reasonable cause standard, stating that OSHA must find reasonable cause that a complaint has merit, as well as evidence to support such merit. However, this evidence doesn't have to be as strong for a reasonable cause when compared to a trial. Furthermore, OSHA's investigation must come to an objective conclusion, meaning that after all facts and evidence have been acquired, a judge would reasonably side in favor of OSHA.

You can read more about OSHA's whistleblower memo by visiting http://www.whistleblower-defense.com/files/2015/04/OSHA-Guidance-Memo1.pdf.