A claim under the anti-retaliation provision of the Sarbanes-Oxley Act must be brought initially at the OSHA at the US Department of Labor. OSHA will investigate the complaint to determine whether there is reasonable cause to believe that retaliation has occurred. If OSHA finds a violation, OSHA can order preliminary reinstatement of the whistleblower.
In spring 2015, OSHA issued a memo clarifying the investigative standard for OSHA whistleblower investigations. The memo provides the following clarification of the “reasonable cause” standard:
- “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.”
- “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.”
- “OSHA’s responsibility to determine whether there is reasonable cause to believe a violation occurred is greater than the complainant’s initial burden to demonstrate a prima facie allegation that is enough to trigger the investigation.”
- “Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.”