The latest iteration of the Occupational Safety and Health Administration’s whistleblower investigations manual contains changes employers might welcome and not. The manual, which has not been revised since 2011, became effective on April 21, 2015, even though OSHA released it in May. The manual can be found at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02- 03-005.pdf.
The revisions may bring more predictability and uniformity to investigation practices and settlements, addressing criticism from attorneys handling whistleblower cases about inconsistency among OSHA regions and offices.
Further, the agency has decided to recognize a respondent's potential good faith defense to punitive damages. In this defense, the employer would need to show that retaliating managers were acting on their own, and that the employer had a “clear and effectively enforced policy” against retaliation, according to the manual.
“Punitive damages may not be appropriate if the respondent had a clear-cut policy against retaliation which was subsequently used to mitigate the retaliatory act,” the manual states.
Another change could bring settlements within easier reach. Under the previous language, OSHA expected employers to acknowledge in settlements that whistleblower violations had occurred. However, in the revised sixth chapter of the manual, which covers settlements and determines what OSHA calls “appropriate remedies,” settlements are allowed without the employer’s admission of any violations.
The manual encourages investigators to consider in a settlement whether to require the employer to provide training for employees or managers on whistleblower rights. The manual states that training may be appropriate, “particularly where the respondent's misconduct was especially egregious, the adverse action was based on a discriminatory personnel policy, or the facts reflect a pattern or practice of retaliation.”
“This is a more aggressive step from the traditionally included non-monetary remedy of posting a notice,” Meagan Newman, an attorney specializing in whistleblower cases, told Bloomberg BNA.
The new approach also expands circumstances for considering when to award so-called front pay (i.e., paying an employee not to return to work). Previously, the guidance referenced only compensating workers who did not return to their positions when the employer concluded reinstatement would be too disruptive. The revised guidance makes clear that in cases where returning to work would cause debilitating anxiety or other risks to the complainant's mental health, front pay may be considered. It also may be considered when there is a determination that an offer of reinstatement was not made in good faith, the complainant’s job or a comparable one is no longer available, or if “extreme hostility” exists between the two parties.
“This type of front pay award is distinct from compensatory damages for emotional distress and mental anguish, including damages for aggravation of a preexisting condition,” Newman said.
Regarding awards for emotional distress and pain and suffering, the manual states that “[e]motional distress is not presumed.” Generally, a complainant must provide objective evidence of distress: mental disorders, sleeplessness, harm to relationships, lessened self-esteem, and the like. There also must be a causal connection between the alleged retaliation and the distress. Provided it is credible, a complainant's own statement may be sufficient to prove distress, according to the manual. While statements from health care providers are not required to recover emotional distress damages, they can buttress a complainant's case, the guidance states.