The Occupational Safety and Health Administration (“OSHA”) recently released so-called “recommended practices” directed at employers who may be covered by any of the 22 whistleblower protection statutes enforced by OSHA. While these “recommended practices” are not mandatory, they are provided by OSHA to assist employers in creating workplaces free from retaliation.
Although these recommendations are NOT regulations or laws that must be immediately implemented, they provide a roadmap of what OSHA will look for if it is investigating whether or not your company’s anti-retaliation program is sufficient. As such, it is important to be aware of OSHA’s five “key elements” of an effective anti-retaliation program. While OSHA’s recommendations go into much more detail, some highlights of these “key elements” include:
Management Commitment: OSHA believes that management should be held accountable for the quality of their response to employees’ concerns. Employers should require training for managers and board members to make certain that they understand what retaliation is and their legal obligations to avoid retaliation. Further, OSHA suggests that employers incorporate anti-retaliation measures (such as championing anti-retaliation initiatives) in management performance standards and reviews.
Compliance Concern Response System: OSHA wants employers to encourage a “speak-up culture” where employees feel comfortable expressing concerns. Employers should create multiple channels for reporting compliance concerns, and employees should have clear and accessible instructions for reporting compliance concerns internally and externally. OSHA further recommends that employers develop a strong, enforceable policy of not punishing employees for reporting concerns or incidents and to follow through on employee concerns, even if they seem trivial.
Anti-Retaliation Response System: OSHA recommends that there should be clearly defined roles and procedures for managers at all levels on how to respond to reports of retaliation. Employers should take all such reports seriously, and maintain employee confidentiality as much as possible. OSHA recommends that employers, when possible, use third-party independent investigators.
Anti-Retaliation Training: Employees should be trained on the relevant laws and regulations and they should understand the employer’s commitment to creating a culture of compliance.
Program Oversight: Employers should develop and implement a plan to ensure that its anti-retaliation program is effective. OSHA recommends constant monitoring of whether the processes in place are being utilized. In addition, it recommends regular audits (a formal, independent, and systematic approach to determine whether the anti-retaliation program is functioning correctly).
If you would like to see OSHA’s response to public comments regarding the “recommended practices,” please click here.
PRACTICE TIP: From the employer’s perspective on minimizing risks of retaliation liability, we recommend that training for managers and supervisors be the primary focus. If managers and supervisors understand that retaliation is prohibited and how to avoid even the appearance of retaliation, the risk of a retaliation claim drops significantly.