The Occupational Safety and Health Administration (OSHA) has issued a new Whistleblower Investigations Manual that clarifies the new, relaxed standard to be used by its investigators in determining whether to pursue a whistleblower complaint beyond the initial investigative stage.

The Manual incorporates guidance issued by OSHA in April 2015 that lowered the burden of proof in whistleblower investigations to a ''reasonable cause'' standard—rather than the more restrictive and employer-friendly threshold of preponderance of the evidence previously in place. According to the Manual, ''[u]nder the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant.'' There must be some evidence in support of each element of a violation, but the new standard does not require that the complainant produce the level of evidence previously needed to move to the hearing phase of the investigation.

OSHA enforces the anti-retaliation/whistleblower provisions of 22 federal statutes, including the Occupational Safety and Health Act, Dodd-Frank, the Affordable Care Act, various environmental and consumer product safety laws, and a host of others regulating industries as varied as trucking, airlines, nuclear power, and railroads. Retaliation claims, in recent years, have been on a steady increase across the country at virtually all levels including administrative agencies and in the state and federal courts. These cases can be difficult to defend, and employers should anticipate that OSHA's new standard will increase that difficulty as well as the cost of defending cases filed before that agency. OSHA will be less likely to dismiss cases early on, more likely to move to hearings, and, most likely, more demanding in settlement negotiations.