Here are some “need to know” developments affecting Federal Rail Safety Act Section 20109 railroad whistleblower retaliation matters.
New Rules of Practice For ALJ Trials
As of June 18, 2015, a new set of Rules of Practice and Procedure will apply to the trial of whistleblower cases before U.S. DOL Administrative Law Judges. An increasing number of whistleblower retaliation claims are being handled by ALJs, and the current revisions are designed to harmonize ALJ hearings with the current Federal Rules of Civil Procedure while streamlining handling of those claims. Some of the notable changes include:
Use of Depositions at Hearings
The new Rules add a provision allowing the unconditional use of depositions at ALJ hearings in the absence of an objection, and even over objection under certain circumstances.
The authority to issue subpoenas remains with the ALJ judge. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for one day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.
Rules of Evidence Remain the Same
Note that the ALJ Rules of Evidence remain the same as before.
OSHA Clarifies Standards of Proof for Whistleblower Investigators
OSHA’s Whistleblower Directorate has issued a Memorandum entitled “Clarification of the Investigative Standard for OSHA Whistleblower Investigations.” In sum, OSHA confirms that the “reasonable cause” standard applies to OSHA investigations, not the preponderance of evidence standard. The best way to understand this distinction is to visualize the four levels of proof applicable to whistleblower retalation cases, starting with the lowest.
OSHA’s first step is to determine if the employee has alleged the existence of facts and evidence sufficient for the Investigator to infer the elements of the whistleblower retaliation claim can be satisfied. There is a prima facie case if there is just enough facts to create an inference or presumption that a violation can be proven. If so, the Investigator proceeds with the full investigation.
OSHA’s next step is to determine whether there is “reasonable cause.” Reasonable cause is less than a preponderance of the evidence. Reasonable cause simply means a reasonable judge could believe a violation occurred. In other words, there is reasonable cause if the employee could succeed in proving a violation; proof that a violation actually has occurred is not required. The Memo states: “OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred.”
Preponderance of the Evidence
This is the standard that applies to whistleblower trials. “Preponderance of the evidence” simply means the greater weight of the evidence. When the weight of all the evidence tips in favor of the employee, even if just ever so slightly, then the employee has carried his burden of proof by a preponderance of the evidence. A preponderance of the evidence is more than reasonable cause but less than reasonable certainty.
Clear and Convincing Evidence
This is the highest level of proof in whistleblower retaliation cases. It only applies to the employer, not the employee. “Clear and convincing evidence” requires proof to a degree of reasonable certainty or high probability. It is the burden of proof an employer must satisfy when proving its defense that it would have taken the exact same adverse action in the absence of the employee’s protected activity.
OSHA’s Memo stresses that when determining merit or non-merit, OSHA’s Investigators must apply “the reasonable cause standard, not the preponderance of the evidence standard that would apply to the claim at trial.” This is a subtle but crucial distinction that must never be forgotten. The reasonable cause standard is lower than the standard of proof at trial, and OSHA Investigators must not view the evidence as if they were a judge at trial. At the OSHA investigation stage, preponderance of the evidence is not required, only enough evidence for the Investigator to conclude a judge could find (not necessarily will find) a violation occurred.
Revision of OSHA’s Whistleblower Investigations Manual
OSHA’s Whistleblower Investigations Manual outlines the standards, procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA. In its first update since September of 2011, OSHA now has a revised Whistleblower Investigations Manual. Some of the highlights include:
The revised Manual lists the factors to consider when determining if an award of front pay (i.e., future lost wages) is appropriate: the complainant’s job or a comparable job is no longer available; the complainant is not physically able of performing his job; an employer’s offer of reinstatement is not made in good faith; there is “extreme hostility” between the parties and reinstatement would be too disruptive; or returning to work would cause debilitating anxiety or otherwise risk the complainant’s mental health.
The Manual’s discussion of emotional distress has been expanded from one paragraph to two pages. Although medical testimony is not necessary, it still is important for the complainant’s testimony to demonstrate manifestations of the distress and a causal connection between the adverse actions and the distress.
Chapter 6 has been extensively revised to provide updated guidance regarding remedies and settlement agreements.
ARB Decision in Leiva v Union Pacific Railroad
The ARB’s Decision in Leiva v Union Pacific Railroad is notable for implicitly recognizing that a signed leniency waiver does not bar a FRSA claim or damages for lost wages. Also, it recognizes that reports of generalized verbal threats with no physical contact qualifiy as a hazardous safety condition actionable under Section 20109’s Subsection (b)(1).