Thursday, August 25, 2016

OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

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We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

On January 28 of this year, OSHA published a new Whistleblower Investigations Manual [pdf]. It is the guidebook OSHA investigators use to determine whether the agency should pursue or dismiss a retaliation case.

In that Manual, OSHA both significantly decreased the showing that a complaining party must show to establish a whistleblower retaliation claim, while, at the same time, significantly increased the burden an employer must meet to demonstrate that it took the challenged adverse action for a legitimate business reason and escape liability

The new, lower standard in whistleblower retaliation investigations is whether “OSHA has reasonable cause to believe a violation occurred.” Indeed, OSHA need only “find reasonable cause that a complaint has merit” to conclude that the employer violated the statute.

How low is this burden? I’ll let OSHA explain:
Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant.… 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. 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 conclusively that a violation did occur.
In other words, OSHA need not find much in support of a complaint to conclude that it has reasonable cause to believe a violation occurred. It’s about as low of an evidentiary standard as one could have.

Among other statutes, this lower standard of proof applies to The Energy Reorganization Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Surface Transportation Assistance Act, the Sarbanes Oxley Act of 2002, the Pipeline Safety Improvement Act of 2002, the Federal Railroad Safety Act, the National Transit Security System Act, the Consumer Product Safety Improvement Act of 2008, the Affordable Care Act, the Consumer Financial Protection Act of 2010, the Seaman’s Protection Act, the FDA Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act. Because of the wide range of industries these statutes impact, the odds are pretty good that this change impacts your business.

All is not lost for employers, however, because the Manual gives employers an out (albeit a narrow one), even if OSHA finds reasonable cause. Again, I’ll let OSHA explain:
Under these statutes, even if there is reasonable cause to believe that protected activity was a contributing factor to the adverse action, the respondent may escape liability (and OSHA will issue non-merit findings) if there is clear and convincing evidence that the respondent would have taken the same action in the absence of the protected activity.
As low of a standard “reasonable cause” is, that’s how high a standard clear and convincing is. It is the highest civil liability standard there is.

What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it too. For all of these whistleblower statutes, OSHA will find a violation on the most minimal of showings, and yet require employers to jump the highest civil evidentiary hurdle possible to avoid the same. And you know what? That’s just not fair. Instead of making it impossible for an employer in all but the clearest of cases to avoid liability, it should strive for a level playing field. Instead, OSHA has tilted the playing field so strongly in a employee’s favor that, if an employee files a whistleblower complaint under one of these “contributing factor” statutes, the employer best be prepared to litigate or pay up, because, in all the but the clearest of cases, OSHA has made it increasingly difficult, if not nearly impossible, for an employer to win.

I understand the importance of protecting whistleblowers and creating an environment in which employees feel comfortable coming forward with complaints, but there has to be a fairer means to accomplish this goal.

This post originally appeared on Meyers Roman’s Ohio OSHA Law Blog.