On May 21, 2015, OSHA—which has responsibility for investigating and enforcement under 22 whistleblower retaliation statutes—released an updated edition of its Whistleblower Investigations Manual (the Manual), the first such update since September 2011. The new edition provides additional guidance to investigators on a variety of issues, with the majority of changes related to potentially available damages and settlement agreements.
Among the key changes are the following:
Punitive Damages: The Manual provides additional detail regarding when punitive damages should be awarded. Additionally, the Manual discusses the effect of an employer’s good faith on such a potential award of punitive damages, including a statement that “[p]unitive damages may not be appropriate if the [employer] has a clear-cut policy against retaliation which was used to mitigate the retaliatory act.”
Training for Employees or Managers In Connection With Settlement: For the first time, investigators are instructed to consider whether—as part of the settlement of a whistleblower claim—a respondent/employer should be required to provide whistleblower training to current employees and/or managers.
Front Pay: Investigators should consider whether a former employee should be given front pay rather than being reinstated, particularly when reinstatement could result in “debilitating anxiety” or other risks to the complainant’s mental health.
Emotional Distress Damages: Two full pages of the Manual address emotional distress damages (expanded from one paragraph in the earlier version) including that such damages may be available when the complainant can demonstrate objective manifestations of distress and a causal connection between the retaliation and distress. (Here is our post on the Fourth Circuit’s recent decision that emotional distress damages are available under SOX.)
Additionally, the Manual includes references to newer whistleblower laws that were not in place at the time of the previous edition, including the Moving Ahead for Progress in the 21st Century Act (MAP-21), which relates to individuals who report automobile defects.
