When the Whistle Blows, Will OSHA Say You Retaliated? The Rules Have Changed

When a worker believes that his employer is breaking federal law, he or she may “blow the whistle” by reporting the employer to regulators, who then open an investigation. Unscrupulous employers may retaliate against whistleblowers by denying them raises, bonuses, or promotions; demoting them; making their lives at work so miserable that they quit; or firing them outright. When whistleblowers feel that they have been punished for doing the right thing, they can report that, too—and the agency they report to is the federal Occupational Safety and Health Administration (OSHA).

Federal OSHA?

You read that right. Workers who feel that they have been subjected to unfair retaliation for reporting their employers’ infractions can lodge a formal complaint under a federal whistleblower protection standard administered by OSHA. OSHA oversees whistleblower protections under not only the Occupational Safety and Health Act but also under 21 additional federal statutes, including six Environmental Protection Agency statutes, and covers industries ranging from nuclear power to consumer products. In January, OSHA updated its guidance in a way that could make it more difficult to have employees’ whistleblower discrimination cases dismissed.

‘Reasonable Cause’ vs. ‘Preponderance of Evidence’

Under the revised guidelines (found at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf), the investigation of a worker’s complaint can be found to have merit if an initial investigation finds “reasonable cause” that a violation of the worker’s rights occurred.

Before January 28, 2016, complainants had to meet a higher evidentiary standard by demonstrating by a “preponderance of the evidence” that their rights had been violated. Under this kind of standard, the evidence for a conclusion must outweigh the evidence against it. So, if a worker says he or she had engaged in a “protected activity”—for example, reporting a violation of safety-related standards to a regulatory agency—and was discriminated against as a result, there must be more evidence showing discrimination than evidence showing the absence of discrimination. For example, the worker may be able to show that he or she was passed over for promotion after the report was made; but, the employer may be able to show that it did not find out about the report until after the promotion process was completed. The preponderance of the evidence in such a case might go against the worker.

On January 28, 2016, the guidelines were revised so that a complainant need only show “reasonable cause” for the complaint. According to the guidance, that means that “OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant ….The evidence does not need to establish conclusively that a violation did occur.” This is a lower standard of evidence than a “preponderance of the evidence.”

What constitutes “reasonable cause” will vary depending upon which statute the employee filed under. Tomorrow we’ll look at what “reasonable cause” means under three different sets of statutes.