Valerie Butera and John F. Fullerton, Members of the Firm in the Employment, Labor, and Workforce Management practice, were cited in Inside OSHA Online, in “Auto Rule Underscores OSHA Push to Bolster Whistleblower Protections.” The article referenced a client alert Ms. Butera and Mr. Fullerton authored, which discussed OSHA’s new manual for whistleblower investigators to use in determining whether a retaliation case should be pursued or dismissed. (Read the full article – subscription required.)

Following is an excerpt:

Under the agency's new 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 recent analysis by lawyers at 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 lawyers say.

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