Limit Your Exposure to Costly Whistleblower Retaliation Claims
“Whistleblowing” doesn’t just mean informing an external authority of the alleged illegal behavior. It can also mean confronting one’s boss over a troublesome situation, such as unsafe working conditions. That may partially explain why the Occupational Safety and Health Administration (OSHA) is considered the patron saint of whistleblowers in the workplace and elsewhere.
With jurisdiction over 22 separate laws, including the Occupational Safety and Health Act, OSHA has broad authority to oversee whistleblower complaints. Among the other laws under OSHA’s purview are the Comprehensive Environmental Response, Compensation and Liability Act, the Consumer Financial Protection Act, the “Moving Ahead for Progress in the 21st Century Act,” and even the Affordable Care Act (ACA).
Most employers make every effort to operate within the law. But even so, it’s critical for decision-makers to understand how your workforce is protected when a company runs afoul of regulations.
OSHA makes it easy for workers to file a complaint, by going to OSHA.gov or Whistleblower.gov. In an online notice titled Your Rights as a Whistleblower, the agency states: “If you believe that your employer retaliated against you because you exercised your legal rights as an employee, contact OSHA immediately.”
Contact can also be made by visiting the nearest OSHA office. There are no forms to fill out, as long as the timing of the communication is evident, such as with a postmark. That’s because different laws have different deadlines for employees to submit their retaliation allegations. For example, the window of time to file a complaint is 30 days under the Occupational Safety and Health Act, but 180 days under the Consumer Product Safety Improvement Act and the ACA.
What Qualifies as Retaliation?
OSHA defines retaliation as an “unfavorable personnel action” in which the employee’s protected activity (more about this below) was a contributing or motivating factor in the decision. In other words, while retaliation might have occurred, the employee in question could have other problems as well, such as poor job performance or sketchy attendance. The existence of additional factors doesn’t mean the employer won’t be held responsible for retaliation.
OSHA’s laundry list of unfavorable personnel actions ranges from the obvious, such as reduction of pay or hours or even termination, to the murky realms of intimidation, threats or blacklisting.
What is “Protected Activity?”
The answer is explained by various laws that include anti-retaliation provisions enforced by OSHA. For example, under the ACA, employees have the right to appeal the denial of coverage for doctor-ordered medical treatments. Therefore, if a male employee is denied coverage for a particular treatment, complains to his employer about it, and subsequently believes he has sustained an “unfavorable personnel action,” he would have the basis for filing a whistleblower claim. Under the Occupational Safety and Health Act, one protected activity is refusing to do a job because conditions are thought to be hazardous. However, it’s protected only if:
- The employee believes the conditions could lead to serious injury or death,
- The employee has unsuccessfully urged the employer to reduce the risk, or
- There’s no time to fix the situation.
It may seem as though the deck is stacked against employers, but rest assured, employees who file a whistleblower claim will need to persuade an OSHA investigator that their claims are valid. Just keep in mind, even if an employee’s allegation is shot down, it’s better to avoid the hassle of having to defend your actions in the first place.
Nip Claims in the Bud
Some sensible guidance on that score comes from OSHA itself. Here are five recommended components of a systematic approach to avoid retaliation claims:
- Management leadership, commitment and accountability: This involves your own buy-in to the effort, and demonstrating your seriousness with action.
- A system for listening to and resolving employee compliance concerns: Establish procedures that enable employees to report safety or other activities enumerated in the 22 laws. Reporting procedures should include anonymous channels. Reports should be evaluated promptly and in a transparent fashion.
- A system to address reports of retaliation: This crucial program component should serve as a backstop if the second one falls short. Employees need a clear way to report perceived retaliation to a manager or executive higher up in the organization than the employee’s immediate boss. Confidentiality should be maintained as needed, and claims should be taken seriously and reviewed promptly and objectively. If an investigation suggests that the employee’s accusation has merit, appropriate action should be taken right away. This is the employee’s final hope of resolution before reporting to OSHA.
- Anti-retaliation training: Such training “is essential because it provides management and employees with the knowledge, skills and tools they need to recognize, report, prevent or properly address hazards, potential violations of the law, and retaliation,” according to OSHA.
- Program oversight: Don’t assume that an effective program you put in place will continue to function well indefinitely. Establish an oversight mechanism to keep tabs on its performance. Success metrics — some of which are subjective — include the number of compliance questions raised and addressed, managers’ adherence to program procedures and employees’ comfort level with reporting compliance violation allegations.
There are no guarantees that a systematic approach will mean your company will never have another whistleblower claim, but having a program in place will definitely improve your odds. Given the broad scope of OSHA’s whistleblowing enforcement authority and compliance requirements under those 22 federal laws, a review of how they pertain to your industry and business type might also be advisable.
If you are are interested in learning about additional options to protect your company, such as our Red Flag Reporting System, please contact us today.