OSHA has issued a memo clarifying the investigative standard for OSHA whistleblower investigations. Under the more than twenty whistleblower protection laws that OSHA enforces, OSHA investigates the whistleblower’s retaliation complaint and will issue a merit finding where there is reasonable cause to believe that retaliation has occurred.  Under most DOL whistleblower protection retaliation laws, a merit finding typically includes a preliminary order of relief to make the employee whole. Such relief can include reinstatement, lost wages, compensatory damages, attorney fees, and under some statutes can also include punitive damages (although the damages available vary by statute — see OSHA Whistleblower Statutes Desk Aid).

The gist of the memo is that “the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing,” and that OSHA can issue a merit finding where an investigation reveals that the complainant could succeed in proving a violation.

The memo provides the following clarification of the “reasonable cause” standard:

• “The threshold OSHA must meet to find reasonable cause that a complaint has merit requires evidence in support of each element of a violation and consideration of the evidence provided by both sides during the investigation, but does not generally require as much evidence as would be required at trial. Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant.”
• “OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.”
• “OSHA’s responsibility to determine whether there is reasonable cause to believe a violation occurred is greater than the complainant’s initial burden to demonstrate a prima facie allegation that is enough to trigger the investigation.”
• “Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.”

OSHA’s clarification of the reasonable cause standard is a positive development for whistleblowers and is consistent with the plain meaning of the whistleblower protection laws that it enforces and with Congressional intent. While the memo does not alter the law, it may increase the number of merit findings in that investigators will understand that they need not obtain “smoking gun” evidence of retaliation to issue a merit finding.