Regulatory Risk

Lightening the Burden of Proof

OSHA is considering reducing the burden of proof to find merit in a whistleblower's claims.
By: | October 27, 2014 • 5 min read

The Occupational Safety and Health Administration is working to ease the burden of proof for whistleblowers, according to Assistant Secretary of Labor for Occupational Safety and Health David Michaels.

“The memo will change the burden of proof to be based on a ‘reasonable cause’ that a violation occurred, which is a lesser burden to prove than a ‘preponderance of the evidence,’ ” Michaels said. “OSHA and the office of the Solicitor of Labor are working on this policy memo, and it should be completed shortly.”

Advertisement




From 2009 through June 30, 2014, OSHA issued 3,726 merit determinations on whistleblower cases, recovering more than $119 million in damages for the complainants, and reinstating 389 whistleblowers to their positions.

“In 2013, we more than doubled the number of merit determinations we issued in 2009, from 450 in fiscal year 2009 to 934 in fiscal year 2013,” Michaels said.

“These 934 merit determinations included 74 merit findings, 860 settlement agreements and awards of [more than] $25 million in total damages to whistleblower complainants, an 89 percent increase from the $13.25 million in damages awarded in fiscal year 2009.”

While the memo has yet to be published, an OSHA spokesperson said the change will not involve lowering the burden of proof.

“The agency is clarifying its policy on determining if a violation of a whistleblower-protection statute has occurred,” said the spokesperson, who added that the “reasonable cause” standard is found in many of OSHA’s whistleblower statues.

Others, however, believe the proposed change could lead to serious consequences for both employers and employees.

“I would brace for the worst. The agency is clearly going to lower the bar for claimants to establish a successful claim. The question is how low they will go.” — John F. Martin, shareholder, Ogletree Deakins

Gregory C. Keating, a Boston-based shareholder at Littler Mendelson, said Michaels and OSHA “believe that Sections 11(c) of the Occupational Safety and Health Act, which prohibits retaliation for complaining about safety problems, is outdated and needs sharper teeth. Lowering the burden of proof makes it easier for OSHA to establish liability for alleged retaliation.”

Gregory C. Keating, shareholder, Littler Mendelson

Gregory C. Keating, shareholder, Littler Mendelson

He is a member of OSHA’s Whistleblower Protection Advisory Committee (WPAC), which makes recommendations to the Secretary of Labor on ways to improve the fairness and effectiveness of whistleblower protections.

John F. Martin, a Washington-based shareholder at Ogletree Deakins, said Michaels “subjectively believes that the vast majority of whistleblower claims have merit, notwithstanding the fact that OSHA’s own internal investigators dismiss most whistleblower claims.”

“Out of 1,947 cases last fiscal year,” he said, “OSHA only reached a ‘merits’ finding 47 times. Even if you take out the settlements and withdrawals, that still means OSHA finds merit in only about 5 percent of the remaining claims.”

Martin said he thinks “Michaels is mystified by these statistics, and he blames the ‘preponderance of the evidence’ burden of proof itself as too high a hurdle,” adding that Michaels’ “attack” on the agency’s current burden of proof is “misguided.”

“The ‘preponderance of the evidence’ standard is a long-standing, well-established burden of proof,” he said. “It practically means ‘more likely than not,’ and it is recognized as fair and used in the vast majority of civil actions in the United States.

“Imagine the Attorney General complaining that the Department of Justice is not securing enough criminal convictions,” he said, “and wanting to lower the burden of proof from ‘beyond a reasonable doubt’ to something easier.”

But, according to OSHA, the proposed change is not a new policy: “It is a clarification of an existing policy. There should be no significant impact on employers.”

Litigation Will Increase

Keating and Martin both disagree.

“This could conceivably open the floodgates to much more litigation,” said Keating. “Justice Kennedy himself noted this when considering this exact issue in the recent Nassar decision, which rejected a lower burden of proof to establish retaliation under the discrimination statutes. Retaliation claims have seen a rocketing rise, and are now the No. 1 employment claim in the United States.

“Lowering the burden of proof will lead to more claims and will require much more scrutiny … ,” he said.

John Martin, shareholder, Ogletree Deakins

John F. Martin, shareholder, Ogletree Deakins

Martin said the potential impact to employers “will depend on how OSHA defines ‘reasonable cause.’ ”

“However,” he said, “I would brace for the worst. The agency is clearly going to lower the bar for claimants to establish a successful claim. The question is how low they will go.

“In the short term, it will impact employers’ evaluations on whether to litigate or settle whistleblower claims. If claimants see that the bar is lower, the number of claims filed could dramatically increase.”

On the other hand, Martin said, the change may encourage employers to appeal more whistleblower claims against them.

“OSHA cannot change the burden of proof that courts must apply under each statute with whistleblower provisions,” he said. “So, while Michaels’ proposal may lead to more merits findings at the administrative investigation stage, OSHA may find itself in trouble if and when the cases reach the courts.”

The proposed change, said Keating, means that organizations “must understand the critical roles they play in managing litigation risk for retaliation claims. They must foster awareness through training and communication with front-line managers regarding what is protected activity.”

Advertisement




Officials must also coordinate and communicate with managers “whenever a decision is looming that could reasonably be considered an adverse action,” he said, “and they must insist that front-line managers practice fundamentals such as documentation and communication to properly manage performance.”

The result may be increased frustration. A company may know that a claim is not credible and that the purported whistleblower has an ulterior motive, Martin said.

“Yet, under [a] lower burden of proof, OSHA gives the claimant the benefit of the doubt and makes a merit finding and damage award. How frustrating is that?”

William Atkinson is a veteran business magazine writer based in Carterville, Ill. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

Advertisement




That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

Advertisement




Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]