A Bloomberg-BNA article entitled New Whistle-Blower Investigation Guidance From OSHA quotes leading whistleblower lawyer Jason Zuckerman whistleblower lawyer Jason Zuckerman about OSHA’s revised standard governing investigations of the whistleblower protection laws that OSHA enforces.
The article reports that OSHA has issued a revised Whistleblower Investigations Manual that defines “reasonable cause” as “somewhat lower than the preponderance of the evidence standard that applies following a hearing.” “The evidence does not need to establish conclusively that a violation did occur,” but instead must suffice to show “that a reasonable judge could believe a violation occurred.”
The article quotes Zuckerman’s analysis of the potential impact of the revised standard:
Jason Zuckerman, an attorney and principal of Zuckerman Law who represents whistle-blowers, told Bloomberg BNA Feb. 2 that the manual is consistent with last year’s memorandum.
“This clarification of the reasonable cause standard is critical to avoid a misperception by investigators that they need ‘smoking gun’ evidence in order to issue a merit finding,” Zuckerman said.
During the investigative stage, the whistle-blower is at a significant disadvantage, compared with the employer, because the whistle-blower lacks access to documents and witnesses, Zuckerman said. It’s appropriate that a reasonable cause finding doesn’t necessarily require as much evidence as would be required at trial to establish unlawful retaliation by a preponderance of the evidence.
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