Standard Governing OSHA Whistleblower Investigations
In spring 2015, OSHA issued a memo clarifying the investigative standard for OSHA whistleblower investigations. OSHA enforces more than twenty whistleblower protection laws, investigating reprisal complaints and issuing merit findings where there is reasonable cause to believe that retaliation has occurred. Under most of these laws, a merit finding typically includes a preliminary order of relief to make the employee whole. Such relief can include reinstatement, lost wages, compensatory damages, and attorney’s fees. Some statutes also provide for punitive damages.
The memo’s essential message was that “the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing,” and that OSHA can issue a merit finding where an investigation reveals that the complainant could succeed in proving a violation.
Definition of “Reasonable Cause” Standard
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.”
OSHA’s clarification of the reasonable cause standard is consistent with the ARB’s precedent. And though the memo does not alter the law, it may increase the number of merit findings because investigators will understand that they need not obtain “smoking gun” evidence of retaliation to issue a merit finding.
 Available at http://www.whistleblowers.gov/InvestigativeStandard20150420.html.
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