Whistleblower Investigations Manual
Contents:
In addition to the overall responsibility of enforcing Section 11 c of the Act, the Secretary of Labor has delegated to OSHA the responsibility for investigating claims of retaliation filed by employees under the whistleblower provisions of the following twenty statutes, which together constitute the whistleblower protection program:. Any applicant for employment , employee, former employee, or his or her authorized representative is permitted to file a whistleblower complaint with OSHA.
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No particular form of complaint is required. A complaint under any statute may be filed orally or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. OSHA, AHERA, and ISCA complaints that do not set forth a prima facie allegation, or are not filed within statutory time limits may be closed administratively—that is, not docketed—provided the complainant accepts this outcome.
Complaints filed under these statutes must be docketed and a written determination issued, unless the complainant, having received an explanation of the situation, withdraws the complaint. Whistleblower complaints must be filed within specified statutory time frames see Table 1 which generally begin when the adverse action takes place. The first day of the time period is the day after the alleged retaliatory decision is both made and communicated to the complainant. Generally, the date of the postmark, facsimile transmittal, e-mail communication, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at a Department of Labor office will be considered the date of filing.
If the postmark is absent or illegible, the date filed is the date the complaint is received. If the last day of the statutory filing period falls on a weekend or a federal holiday, or if the relevant OSHA.
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Office is closed, then the next business day will count as the final day. Complaints filed after these deadlines will normally be closed without further investigation. However, there are certain extenuating circumstances that could justify tolling these statutory filing deadlines under equitable principles.
If the complainant does not withdraw, a dismissal must be issued if the complaint was untimely and there was no valid extenuating circumstance.
The request must be made in writing to DEP within 15 calendar days of the complainant's receipt of the region's dismissal letter, with a copy to the RA. If the amendment reasonably relates to the original complaint, then it must be accepted as an amendment, provided that the investigation remains open. If the postmark is absent or illegible, the date filed is the date the complaint is received. In limited circumstances, witness statements and evidence may be obtained by telephone, mail, or electronically. Office is closed, then the next business day will count as the final day. Thus, after evaluating all of the evidence provided by the employer and the complainant, OSHA must believe that a reasonable judge could rule in favor of the complainant.
The following are reasons that may justify the tolling of a deadline, and an investigation must ordinarily be conducted if evidence establishes that a late filing was due to any of them. However, these circumstances are not to be considered all-inclusive, and the reader should refer to appropriate regulations and current case law for further information. Conditions which will not justify extension of the filing period include:. If the amendment reasonably relates to the original complaint, then it must be accepted as an amendment, provided that the investigation remains open.
If the amendment is determined to be unrelated to the original complaint, then it may be handled as a new complaint of retaliation and processed in accordance with the implicated statute. Conduct of the Investigation. The investigator should make clear to all parties that DOL does not represent either the complainant or respondent, and that both the complainant's allegation s and the respondent's proffered non-retaliatory reason s for the alleged adverse action must be tested.
On this basis, relevant and sufficient evidence should be identified and collected in order to reach an appropriate determination of the case.
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If, having interviewed the parties and relevant witnesses and examined relevant documentary evidence, the complainant is unable to establish the elements of a prima facie allegation, then the case should, be dismissed. The investigator must ensure that the complainant and the respondent s are covered under the statute s at issue. Detailed information regarding coverage under each statute can be found in each statute.
This Instruction implements the OSHA Whistleblower. Investigations Manual, and supersedes the April 21, Instruction. This manual. Current Directive Number: CPL Old Directive Number: CPL , CPL Title: Whistleblower Investigations Manual.
Weighing the Evidence — Burden of Proof. The whistleblower statutes administered by OSHA fall into two groups, with distinct standards of causation and burdens of proof—the "motivating factor" and the "contributing factor" statutes. Under this standard, the investigation must disclose facts sufficient to raise the inference that the protected activity was a motivating factor in the adverse action.
The Department of Labor relies on the standards derived from discrimination case law as set forth in Mt. Healthy City School Board v. Burdine , U. Green , U. The possible outcomes of an investigation of a complaint under a motivating-factor statute are: In mixed-motive cases, the employer bears the risk that the influence of legal and illegal motives cannot be separated.
The Court rejected mixed motive analysis, i. However, the Department does not believe that Gross affects the long-standing burden-shifting framework applied in mixed-motive cases under 11 c , AHERA, ISCA, and the six environmental whistleblower statutes. Negative implications raised by disparate provisions are strongest when the provisions were considered simultaneously when the language raising the implication was inserted. Department of Labor , F. Since Gross was decided, the ARB has continued to apply mixed-motive analysis in environmental whistleblower cases.
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Gross does not affect pretext analysis under McDonnell Douglas. Tower Automotive, F. Thus, the protected activity, alone or in combination with other factors, must have affected in some way the outcome of the employer's decision. The possible outcomes of investigation of a complaint under a contributing-factor statute are: In cases where protected activity is not the only factor considered in the adverse action, the employer bears the risk that the influence of legal and illegal motives cannot be separated. These provisions help stem frivolous complaints and simply codify the commonsense principle that no investigation should continue beyond the point at which enough evidence has been gathered to reach a determination.
An effective investigation focuses on the elements of a violation and the burden of proof required. If the investigation does not establish, by preponderance of the evidence, any of the elements of a prima facie allegation, the case should be dismissed.
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The evidence must establish that the complainant engaged in activity protected by the specific statute s under which the complaint was filed. However, with the exception of certain cases involving refusals to work, it is not necessary to prove the referenced statute s were actually violated. Rather, as long as the complainant's protected activity was made in good faith and a reasonable person could have raised the same issue, the action meets this element.
Protected activity generally falls into four broad categories:. The investigation must show that a person involved in the decision to take the adverse action was aware, or suspected, that the complainant engaged in protected activity. For example, one of the respondent's managers need not have specific knowledge that the complainant contacted a regulatory agency if his or her previous internal complaints would cause the respondent to suspect a regulatory action was initiated by the complainant.
Also, the investigation need not show that the person who made the decision to take the adverse action had knowledge of the protected activity, only that someone who provided input that led to the decision had knowledge of the protected activity. If the respondent does not have actual knowledge, but could reasonably deduce that the complainant filed a complaint, it is referred to as inferred knowledge.
Examples of inferred knowledge include, but are not limited to:. The evidence must demonstrate that the complainant suffered some form of adverse action initiated by the employer.
An adverse action may occur at work; or, in certain circumstances, outside of work. Some examples of adverse actions may include, but are not limited to:.
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It may not always be clear whether the complainant suffered an adverse action. A causal link between the protected activity and the adverse action must be established by a preponderance of the evidence. Nexus cannot always be demonstrated by direct evidence and may involve one or more of several indicators such as animus exhibited ill will toward the protected activity, timing proximity in time between the protected activity and the adverse action , disparate treatment of the complainant in comparison to other similarly situated employees or in comparison to how the complainant was treated prior to engaging in protected activity , false testimony or manufactured evidence.
Personal interviews and collection of documentary evidence must be conducted on-site whenever practicable. Investigations should be planned in such a manner as to personally interview all appropriate witnesses during a single site visit. The witness may, of course, request that an attorney or other personal representative be present at any time. In limited circumstances, witness statements and evidence may be obtained by telephone, mail, or electronically. This does not apply to other audio or video recordings supplied by the complainant or witnesses.
The investigator must attempt to interview the complainant in all cases. The investigator must arrange to meet with the complainant as soon as possible to conduct an interview regarding the complainant's allegations. When practical and possible, the investigator will conduct face-to-face interviews with complainants.
It is highly desirable to obtain a signed interview statement from the complainant during the interview. A signed interview statement is useful for purposes of case review, subsequent changes in the complainant's status, possible later variations in the complainant's account of the facts, and documentation for potential litigation.
The investigator must attempt to obtain from the complainant all documentation in his or her possession that is relevant to the case. Relevant records may include, but are not limited to:. The restitution sought by the complainant should be ascertained during the interview. If discharged or laid off by the respondent, the complainant should be advised of his or her obligation to seek other employment and to maintain records of interim earnings.
Failure to do so could result in a reduction in the amount of the back pay to which the complainant might be entitled in the event of settlement, issuance of merit findings and order, or litigation. The complainant should also retain documentation supporting any other claimed losses resulting from the adverse action, such as medical bills, repossessed property, etc.
Assertions made in the respondent's position statement do not constitute evidence, and generally, the investigator must still contact the respondent to interview witnesses, review records and obtain documentary evidence, or to further test the respondent's stated defense. At a minimum, copies of relevant documents and records should be requested, including disciplinary records if the complaint involves a disciplinary action.
If the respondent requests time to consult legal counsel, the investigator must advise him or her that future contact in the matter will be through such representative. A Designation of Representative form should be completed by the respondent's representative to document his or her involvement. In the absence of a signed Designation of Representative, the investigator is not bound or limited to making contacts with the respondent through any one individual or other designated representative e.
If a position letter was received from the respondent, the investigator's initial contact should be the person who signed the letter. Witnesses must be interviewed individually, in private, to avoid confusion and biased testimony, and to maintain confidentiality. Witnesses must be advised of their rights regarding protection under the applicable whistleblower statute s , and advised that they may contact OSHA if they believe that they have been subjected to retaliation because they participated in an OSHA investigation. If the respondent has designated an attorney to represent the company, interviews with management officials should ordinarily be scheduled through the attorney, who generally will be afforded the right to be present during any interviews of management officials.
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