OSHA Seeks to Lower Whistle-Blowers’ Burden of Proof

By Roy Maurer Sep 22, 2014

The Occupational Safety and Health Administration (OSHA) is working to lower the burden of proof in whistle-blower investigations from a “preponderance of the evidence” to a “reasonable cause,” OSHA administrator David Michaels recently told the agency’s Whistleblower Protection Advisory Committee.

OSHA and the Office of the Solicitor of Labor are working on the policy change and it should be completed shortly, he told the panel.

The committee advises and makes recommendations to OSHA on ways to improve the agency’s whistle-blower protection activities.

OSHA enforces the whistle-blower provisions of the Occupational Safety and Health Act and 21 other statutes protecting employees who report violations of securities, trucking, airline, nuclear, pipeline, environmental, rail, maritime, health care, consumer-product and food-safety laws, and must adhere to a burden-of-proof standard when deciding whether a whistle-blower complaint has merit. Cases determined to lack merit are generally dismissed.

“It is a likely consequence that lowering the burden of proof may well result in more cases in which claimants satisfy the lower threshold,” said Gregory Dale, a partner in the Indianapolis office of Faegre Baker Daniels.

OSHA dismisses most whistle-blower claims for lack of merit, added John Martin, a shareholder in the Washington, D.C., office of Ogletree Deakins. “Not counting settlements and withdrawals—both of which may be done for a variety of reasons not necessarily related to the merits of the claim—the vast majority of claims that OSHA’s own investigators must make a call on are dismissed.”

Martin believes that the decision to lower the standard of proof has resulted from frustration at the agency’s executive level with the lack of merit findings. “For years there has been internal pressure on OSHA’s whistle-blower investigators to make more merit findings, but that hasn’t changed anything,” he said.

The consequence to employers will depend on how OSHA defines reasonable cause. “But it will probably be a ridiculously easy standard for a claimant to meet,” said Martin. “Under ‘preponderance,’ the evidence must, more likely than not, show a violation of the elements of the whistle-blower statute. ‘Reasonable cause’ will likely force OSHA investigators to give the benefit of the doubt to claimants.”

Another consequence may be employers adjusting their practices and policies to allow for higher levels of evidence justifying an adverse employment action before taking such action, remarked Dale.

Whistle-Blower Program Growing ‘Stronger’

Michaels told the committee that from 2009 through June 30, 2014, OSHA issued 3,726 merit determinations, recovered over $119 million in damages for whistle-blower complainants, and reinstated 389 whistle-blowers to their positions.

OSHA made 934 merit determinations in fiscal year 2013, which broke down into 74 merit findings and 860 settlement agreements, with awards of over $25 million in total damages to whistle-blower complainants. That’s an 89 percent increase from the $13.25 million in damages awarded in fiscal year 2009.

“In the first three quarters of this year, we’ve already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistle-blower complainants,” he said.

Reducing Backlog

Michaels told the committee that the agency’s new procedures to reduce pending case inventory are working. The average time to complete a review has declined from 279 days a year ago to 89 days, he said.

OSHA Wish List

Changing corporate culture around the issue of retaliation for whistle-blowing and upgrading Section 11(c) of the Occupational Safety and Health (OSH) Act, which governs whistle-blowing, are two major goals still to be achieved, Michaels told the committee. “We would like your assistance in helping employers achieve a culture of ethics and compliance … in which compliance with the letter and spirit of the law is both required and encouraged at every level of the organization, employees feel welcomed and encouraged to share concerns about possible noncompliance, and individuals who come forward in good faith to report possible misconduct or safety concerns can do so without fear of retaliation of any kind,” he said.

He committed OSHA to providing and showcasing industry best practices that encourage employers to establish effective anti-retaliation reporting programs in their workplaces.

Michaels also asked the committee to vote on recommendations strengthening the OSH Act’s Section 11(c) whistle-blower provisions, which make up the majority of OSHA’s whistle-blower investigations.

The advisory committee unanimously voted to recommend:

  • Lowering the burden-of-proof requirement for complainants to a “contributing factor” instead of having to prove an employee was dismissed solely for raising safety concerns.
  • Giving workers a right to preliminary reinstatement following an initial finding in their favor.
  • Permitting complainants to take their OSH Act cases to federal court.
  • Extending the filing deadline to 180 days after the retaliatory action, instead of the current 30-day limit.
  • Prohibiting pre-dispute arbitration agreements with employers from limiting a worker’s right to file a Section 11(c) complaint with OSHA.

Gregory Keating, a committee member and co-chair of law firm Littler’s whistle-blowing and retaliation practice group, agreed that the whistle-blower provisions need strengthening, but warned that lowering the burden of proof could lead to a flood of frivolous claims, expending already taxed agency resources.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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