Lightening the Burden of Proof
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.”
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11(c) of the Occupational Safety and Health Act, which prohibits retaliation for complaining about safety problems, is outdated and needs sharper teeth.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.”
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.
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.”
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?”