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Complaints that an employer has retaliated against a whistleblower are filed and adjudicated under the rules of the standard by which the employee “blew the whistle”—but all investigations of reasonable cause are handled by OSHA.
Reasonable Cause Under Different Statutes
In order to issue a finding of merit (i.e., to determine that there is “reasonable cause” for the complaint), OSHA will reference the standard of proof that applies to the individual complaint.
For cases under district court statutes, which include OSHA’s own whistleblower rules as well as those of the Asbestos Hazard Emergency Response Act (AHERA) and the International Safe Container Act (ISCA), the plaintiff must prove that the employer would not have taken adverse action but for the protected activity. Thus, in order to determine that reasonable cause exists under these statutes, OSHA must have reasonable cause to believe that the employer would not have carried out the adverse action but for the protected activity. The “but-for” causation test is more stringent than the contributing factor tests or the motivating factor tests (see below), but it does not require a showing that the protected activity was the sole reason for the adverse action.
For cases under administrative statutes, including environmental statutes, two different standards of proof apply.
- Contributing factors. The contributing factors statutes require a lower standard of proof to establish causation and a higher standard of proof for an employer to establish an affirmative defense. A contributing factor is “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.” In order for OSHA to issue a merit finding under these statutes, there must be reasonable cause to believe that the protected activity was a contributing factor in the adverse action.
Thus, the complainant must show that the protected activity affected his or her treatment by the employer, though the protected activity need not have been the sole or predominant cause of the employer’s action. So, while it may be true in such a case that the employee was unsatisfactory in other ways, if the employee’s whistleblower complaint was just one factor in his or her treatment by the employer, the employer can be found guilty of retaliation. To prove an affirmative defense in such cases, the employer must show clear and convincing evidence that it would have taken the same action even in the absence of the protected activity.
Statutes that use a “contributing factors” standard of proof include:
- 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 Security System 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 Food and Drug Administration’s Food Safety Modernization Act
- The Moving Ahead for Progress in the 21st Century Act
- Motivating factors. The six environmental statutes listed below use a “motivating factor” standard of causation. A motivating factor is a substantial factor in causing an adverse action. It is a higher standard of causation than the contributing factor standard but a lower standard of causation than the “but for” standard used under OSHA, AHERA and ISCA.
OSHA will issue merit findings under these statutes if there is reasonable cause to believe that protected activity was a motivating factor in the adverse action and if the employer cannot show that it would have taken the same action but for the protected activity. In other words, under these statutes, OSHA may find merit if there is reasonable cause to believe that the employer’s stated reason for taking action against the employee is pretext, and adverse action was actually taken in retaliation for protected activity.
OSHA may also find merit if there is reasonable cause to believe that the adverse action was motivated by legitimate and retaliatory motives and if the employer has not shown it would have taken the same action in the absence of the protected activity. Unlike it would under “contributing factor” statutes, the employer does not need to show by clear and convincing evidence that it would have taken the same action absent the protected activity.
The motivating factors standard is used in:
- The Clean Air Act
- The Comprehensive Environmental Response, Compensation, and Liability Act
- The Federal Water Pollution Control Act
- The Safe Drinking Water Act
- The Solid Waste Disposal Act
- The Toxic Substances Control Act
To find out more about OSHA’s role in whistleblower investigations, visit Safety.BLR.com®.