Determining a case
Because OSHA is the lead federal agency for investigating whistleblower claims, agency inspectors must show that each of the four elements of a prima facie (“at first view”) allegation has been established.
According to OSHA, the elements are:
- Protected activity: It must be established that the complainant engaged in activity protected by the specific statute(s) under which the complaint was filed. Protected activity includes providing information or reporting an alleged violation of the law to a government agency, employer, labor union, health department, fire department, Congress or the president.
- Employer knowledge: 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.
- Adverse action: Evidence must demonstrate that the complainant suffered some form of adverse employment action initiated by the employer.
- Nexus: A causal link between the protected activity and adverse action must be established.
OSHA stresses that its investigators are not advocates for either side of an action, but rather neutral fact finders. If the complainant is unable to demonstrate the elements of a prima facie allegation with a majority of the evidence, the case is dismissed. The agency said it makes every effort to accommodate situations in which both parties seek resolution before completion of the investigation.
After gathering available evidence and resolving any discrepancies in testimony, investigators will evaluate the documentation and draw conclusions based on the evidence and law before a final investigative report is written. The report and case file are forwarded to supervisors either for dismissal or for confirming a violation of the relevant statute.