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.