On January 28, 2016, OSHA released an updated Whistleblower Investigations Manual (OSHA Instruction CPL 02-03-005) to replace the manual dated April 21, 2015. The new manual makes three significant changes:
- The sections on Investigative Records and Statistics have been deleted. Investigative Records is covered in the new Chapter 23, “Information Disclosure.”
- Chapter 3, “Conduct of the Investigation” has modified the burden of proof. Prior to January 28, 2016, the merits of a whistleblower investigation were decided based on the “preponderance of the evidence.” Under the new guidelines, the burden of proof for all whistleblower statutes enforced by OSHA has been lowered to “reasonable cause.” Under the reasonable cause standard, it is sufficient that “OSHA must believe … 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 shift makes it easier for complainants to establish their case before OSHA.
- A new Chapter 23, “Information Disclosure” has been added which provides comprehensive instructions on the disclosure of whistleblower-related documents under OSHA’s Non-Public Disclosures policy, the Privacy Act, and the Freedom of Information Act. It includes discussion on non-public disclosure of information in the investigation file with a party to the investigation. OSHA recognizes that it may not always be advisable to provide actual documents if providing those documents might either lead to retaliation against the complainant, or result in an incident of workplace violence at the respondent’s place of business. In such situations, OSHA “in its discretion” may opt to provide a summary of the documents in place of the actual documents.
While the manual is written as guidance for OSHA investigators, it is also bears significance for anyone who may potentially be involved in a whistleblower investigation. The Manual can be read in full here.