While the current administration is taking steps to dismantle what it views as excessive regulation, one thing is clear: whistleblowers continue to blow the whistle, and ever more visibly so.
Commentators have speculated that with the election of President Trump, the Occupational Safety and Health Administration (OSHA), which enforces 22 whistleblower statutes, would shift its focus from enforcement to compliance and outreach. Indeed, at least based on the first few months of this administration, that appears to be the case. (In April, OSHA issued its first press release regarding an enforcement action since the inauguration.)
Regardless of OSHA’s approach, more and more employees continue to blow the whistle across industries. One consulting firm recently published a report noting a 56 percent increase in whistleblowing since 2010, and noted that “this higher level is the new norm and that organizations need to be prepared to investigate and manage the higher level” of such reports. That increase in ethics and compliance reporting rates is consistent with the increase reflected in EEOC’s 2016 charge statistics, with about half of all charges now alleging retaliation against employees for complaining about violation of the law.
One need look no further than the headlines to see the consequences of failing to timely investigate and act in the face of such complaints. Airlines, banks, TV networks, rideshare companies – all have suffered after whistleblowers’ claims made the news. Such stories now appear frequently, and increasing media attention means increasing awareness on the part of employees about their workplace rights and corporate responsibility.
In addition, retaliation continues to be a focus for regulatory agencies. The SEC indicated in its 2016 Annual Report to Congress on the Dodd-Frank Whistleblower Program that protecting whistleblowers from retaliation would continue to be among its priorities, and the EEOC in 2016 published new retaliation guidance. Also earlier this year, OSHA issued “Recommended Practices for Anti-Retaliation Programs,” offering recommendations for implementing anti-retaliation programs, systems, and training.
In the current climate, employers should consider adopting policies and procedures to encourage reporting issues internally, train personnel in responding, and make sure their policies and procedures are being followed. Key best practices would include:
- Provide clear reporting channels for employees to report concerns to HR and/or key leadership, and train those who will be receiving such complaints in how to respond;
- Consider using an outside hotline for reporting concerns;
- Establish a company code of conduct that requires all employees – leadership, senior management, and rank and file – to fully cooperate in any investigation into allegations of misconduct, and reinforce it with regular training;
- Take steps to protect employees who report wrongdoing;
- Establish protocols for how issues should be addressed and who will address them before they arise, and identify situations that may require immediate steps to minimize damage or risk;
- Establish a formal process for tracking reported issues and their resolution;
- Establish a clear protocol for how matters will be reported to the company’s Board of Directors, or its designated subcommittee;
- Train supervisors, managers, and human resources professionals to recognize and respond to issues they observe or become aware of in the workplace, even if an employee does not report it;
- After concluding investigations and taking action as needed, check back in with complainants to ensure they are not experiencing retaliation;
- Keep policies and procedures current to ensure compliance with applicable law.
The bottom line for employers: be proactive in encouraging employees to bring issues to the attention of management and in addressing them.