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Recent Guidance Memorandum from OSHA in Whistle-Blower Cases

On April 20, 2015, the Directorate of Whistleblower Protection Programs issued a guidance memorandum found here http://www.whistleblower-defense.com/files/2015/04/OSHA-Guidance-Memo1.pdf to clarify the standards for its whistleblower investigations.  OSHA is the “front line” of the Department of Labor enforcement for a host of whistleblower statutes.   Upon the filing of a whistle-blower complaint, OSHA conducts an investigation and determines whether the complaint has merit.  It issues a merits finding if the investigation reveals reasonable cause to believe that a violation of a whistleblower statute occurred.  The recent memorandum attempts to clarify the difference between the “reasonable cause” standard and the “preponderance of the evidence” standard.  The memorandum emphasizes that the reasonable cause standard is a less onerous standard than preponderance of the evidence.  The investigation findings need only establish that a reasonable judge could rule in favor of the complainant.  In other words, the evidence does not need to establish conclusively that a violation did in fact occur.  The question remains whether the emphasis in the memorandum on a lower standard will cause an increase in whistleblower claims and reasonable cause findings.  If you have any questions or need further clarification, please contact a member of our labor and employment section.

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