The Directorate of Whistleblower Protection Programs recently issued a guidance memorandum titled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” for the apparent purpose of clarifying the standards for its whistleblower investigations. A review of this memorandum provides employers with insight as to the standard OSHA uses to determine whether a merits finding is in order.
As an initial matter, upon receiving a whistleblower complaint, OSHA—the front line of DOL enforcement for a range of whistleblower statutes—conducts an investigation and determines whether the complaint has merit. It will issue a merits finding if the investigation reveals reasonable cause to believe that a violation of a whistleblower statute occurred. Notably, the memorandum emphasizes the difference between the applicable reasonable cause standard and the preponderance of the evidence standard:
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. 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. Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusive that a violation did occur.
(Emphasis in original.)
Query whether this emphasis on a seemingly less onerous standard will engender an uptick in whistleblower claims and reasonable cause findings. We will monitor this closely.
