Attorneys: New OSHA Whistleblower Guidance Favors Employees

The bar has dropped for OSHA investigators to determine whether a workplace retaliation complaint has merit, according to an assessment by occupational safety and health attorneys, leaving employers more vulnerable to whistleblower investigations.

Under recently revised whistleblower investigation guidance, OSHA investigators no longer have to determine that retaliation against an employee who reports a health and safety violation actually occurred. Rather, investigators now only need to be convinced that an administrative law judge could find that retaliation did occur, according to a blog post from law firm Epstein Becker Green.

“This subjective standard, and the elimination of the employer’s ability to avoid a merit finding by providing clear and convincing evidence that the alleged retaliatory act would have taken place without the whistleblower’s protected activity, seems to have tipped the balance in the whistleblower’s favor and played employers in a precarious situation — unable to determine with any degree of certainty their chances of prevailing in any whistleblower case,” the post says.

The number of cases that are scheduled for hearings before administrative law judges will likely increase as a result of the new guidance, the post says, and may result in more employers opting to participate in OSHA’s early resolution option, which allows an OSHA investigator to work with the employer and employee to settle the retaliation complaint. – Joshua Higgins (jhiggins@iwpnews.com)