Valerie Butera and John F. Fullerton III, Members of the Firm, authored a client advisory—“OSHA’s New Whistleblower Investigations Manual Lowers Pleading Standards”—that was recently quoted in Inside OSHA Online, in “New OSHA Whistleblower Guidance Favors Employees,” by Joshua Higgins. (Read the full version – subscription required.)
Following is an excerpt:
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.