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The Practical Employer

OSHA Whistleblowing Manual Muzzles Employers

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does.

I sat in my family room earlier this summer and watched in awe as Usain Bolt completed his gold medal triple for the third straight Olympics, cementing his legacy as the greatest sprinter of all time.

What happens, however, if the International Olympic Committee decides that it wants to give slower runners a chance at that illustrious gold medal? While everyone else runs the 100-meter event in 100 meters, Bolt must run 110 meters. “Not fair,” you cry! And you’re right. Yet, that is exactly what Occupational Safety and Health Administration recently did to employers in retaliation cases.WF_WebSite_BlogHeaders-11

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does.

In addition to guarding our nation’s workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes: 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 Systems Security 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.

Earlier this year, OSHA published a new Whistleblower Investigations Manual. It’s 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.

This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence. If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little to nudge the scales in the direction of that halfway point.

It gets worse for employers. OSHA also 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. Per this higher employer standard of proof, if OSHA finds reasonable cause of retaliation, an employer can escape liability, but only 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. Using the same scale analogy, “clear and convincing” is enough to significantly weigh down the scale to one side.

What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it, too. 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 an 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 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, but there has to be a fairer means to accomplish this goal. Time will tell if these new standards will increase the number of whistleblower complaints filed by employees. I am confident that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation have increased significantly.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

 

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