OSHA Publishes Updated Whistleblower Investigations Manual | Practical Law

OSHA Publishes Updated Whistleblower Investigations Manual | Practical Law

The Occupational Safety and Health Administration (OSHA) has released an updated version of its Whistleblower Investigations Manual. The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 22 statutes enforced by OSHA.

OSHA Publishes Updated Whistleblower Investigations Manual

Practical Law Legal Update 0-616-4071 (Approx. 4 pages)

OSHA Publishes Updated Whistleblower Investigations Manual

by Practical Law Labor & Employment
Published on 10 Jun 2015 • USA (National/Federal)
The Occupational Safety and Health Administration (OSHA) has released an updated version of its Whistleblower Investigations Manual. The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 22 statutes enforced by OSHA.
On May 21, 2015, OSHA announced the release of an updated version of its Whistleblower Investigations Manual, which indicates an effective date of April 21, 2015. The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 22 statutes enforced by OSHA (including the newly added Moving Ahead for Progress in the 21st Century Act). The most substantial updates are found in the "Remedies and Settlement Agreements" chapter.
Among other changes, the updated manual:
  • Identifies additional situations in which front pay, rather than reinstatement, may be appropriate.
  • Details a complainant's duty to mitigate damages.
  • Clarifies that a complainant's interim earnings should be deducted from the back pay calculation using the periodic mitigation method.
  • Requires the complainant to show evidence of an objective manifestation of emotional distress and a causal link between the alleged retaliatory conduct and that distress. The investigator can rely solely on the complainant's own statement to meet the evidentiary burden.
  • Clarifies how lost wages should be calculated if a complainant is paid by salary or piece rate.
  • Provides detailed guidance on:
    • when punitive damages are appropriate; and
    • how to calculate the amount of a punitive damages award.
  • Adds manager training to the potential non-monetary remedies available in situations in which:
    • the misconduct was particularly egregious;
    • the adverse action was based on a discriminatory personnel policy; or
    • there has been a pattern or practice of retaliation.
OSHA previously updated its Whistleblower Investigations Manual in 2011 (see Legal Update, OSHA Issues Updated Whistleblower Investigations Manual).