OSHA Issues Revised Whistleblower Investigations Manual

Continuing its efforts to strengthen the enforcement of the Occupational Safety and Health Administration’s Whistleblower Protection Program, OSHA has released an updated Whistleblower Investigations Manual (pdf) containing revised case handling procedures and information on new laws enacted since the last manual was issued. The agency is responsible for enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). In August, OSHA announced its plans to improve its efforts to investigate and enforce whistleblower complaints under these statutes in response to a Government Accountability Office (GAO) assessment of the agency’s Whistleblower Protection Program, which the GAO found lacking.

To this end, the main changes to the Investigations Manual include the following:

• New chapters are added to provide information on investigating and processing whistleblower complaints filed under the Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and the Consumer Product Safety Improvement Act (CPSIA). In addition, the manual includes significant updates to the Surface Transportation Assistance Act (STAA) and to the Sarbanes-Oxley chapters, which reflects amendments made in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
• The manual requires investigators to attempt to interview the complainant in all cases.
• The manual contains an expanded discussion of causation, burdens of proof, and the elements of a violation. As part of the intake process, the supervisor must verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
• The instruction specifies that whistleblower complaints under any statute may be filed orally or in writing, in any language, and that OSHA will be accepting electronically-filed complaints on its Whistleblower Protection Program website.
• The manual clarifies certain aspects of the investigation process, including the method and recording of interviews, and the processing of dually-filed 11(c) complaints in state plan states.
• The manual includes changes in procedures for handling Privacy Act files and Freedom of Information Act requests.
• The manual explains that interest on back pay and other damages is to be computed by compounding daily the IRS interest rate for the underpayment of taxes.
• Finally, the manual sets forth additional guidance addressing uncooperative respondents and the process of issuing administrative subpoenas during whistleblower investigations.

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