On December 5, 2013, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced its intent to launch an online complaint system that will provide workers another avenue to file whistleblower retaliation claims against their employers. “The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”
The Department of Labor relies on OSHA to administer the whistleblower protections guaranteed under 22 different federal statutes. For example, OSHA oversees enforcement of whistleblower provisions under the Occupational Safety and Health Act, itself, National Transit Systems Security Act (NTSSA) (6 U.S.C. §1142), Sarbanes-Oxley Act (SOX) (18 U.S.C. § 1514A), Surface Transportation Assistance Act (STAA) (49 U.S.C. § 31105), 29 U.S.C. 218C Section 1558 of the Affordable Care Act (ACA), and others.
Employers typically recognize OSHA as the federal agency that “assure[s] safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance” or, in other words, ensures workplace safety compliance. However, OSHA plays a larger role in the administration and enforcement of whistleblower protections in this country.
Generally, anti-retaliatory statutory provisions prohibit covered employers from discharging or otherwise discriminating against any employee because they have engaged in certain activities protected by law. These protected activities typically include initiating a proceeding under or for the enforcement of any of the statutes, or causing such a proceeding to be initiated; testifying in any such proceeding; assisting or participating in any such proceeding or in any other action to carry out the purposes of these statutes; or complaining about a violation.
Currently, employees who believe they have been subject to retaliation for engaging in protected activity under one of the statutes for which OSHA has responsibility for investigating, can report retaliation by submitting a written complaint to OSHA; calling OSHA; or by visiting a local OSHA office. However, with the creation of the arguably streamlined on-line reporting process, employers should likely brace for an uptick in the number of retaliation complaints received each year.
With an eye towards the likely upswing in complaints, employers should reevaluate their current policies and procedures to avoid whistleblower retaliation complaints. The following tips and practical advice can help to reduce the potential of liability for retaliation claims going forward:
- Review your company’s anti-retaliation policy – Include an anti-retaliation policy as part of your new hire orientation. Review the anti-retaliation policy periodically as part of on-going human resources training. Ensure employees are aware of specific internal reporting mechanisms and stress that retaliation of any kind will not be tolerated by the company. Formally document all training sessions.
- Conduct periodic training with decision makers – Inform company supervisors and managers what constitutes whistleblower retaliation and make clear that it will not be tolerated under any circumstances. Again, formally document all training sessions.
- Communicate with the complaining employee – Once a complaint is received, company representatives should let the complaining employee know that his/her complaint is being taken seriously and will not result in retaliation of any kind.
- Document any and all steps taken relative to the complaint – Be sure to document and record any steps you take in dealing with complaint and retaliation issues.
- Maintain confidentiality of complaints to the extent possible. Consider addressing the complaint without exposing the identity of the complainant, if possible. If supervisors and managers are unaware who made the complaint, they cannot be said to retaliate against that employee at a later date.
While an employer must not retaliate against a whistleblower after a complaint has been made, the employer may still discipline in appropriate circumstances if otherwise warranted. Legally, retaliation only occurs where an adverse employment action is taken because the employee asserted his or her right to engage in protected activity. Thus, an employer may take adverse action against employees for any other reason, so long as it is wholly unrelated to the whistleblower activity. For instance, an employer could take the following actions against an employee even after the employee makes a whistleblower claim:
- Issuing negative evaluations for poor performance.
- Discipline for an employee who fails to meet productivity quotas.
- Terminating an employee for violations of a company’s drug and alcohol policy.
Given the myriad of statutory anti-retaliation provisions administered by OSHA and the likely increase in retaliation complaints on the horizon, employers considering disciplinary or other adverse action against an employee who previously engaged in any whistle blowing activity should contact an experienced labor and employment attorney.