The Department of Labor’s Occupational Safety and Health Administration has released long-anticipated guidance on recommended best practices for whistleblower anti-retaliation programs.
The guidelines were unanimously recommended by the Secretary of Labor’s Whistleblower Protection Advisory Committee. The 12-member panel makes recommendations on ways to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections.
“Whistleblower enforcement has increased significantly across a broad spectrum of agencies, and it is critical that employers train management now on the important role they play in recognizing and properly responding to a whistleblower,” says Gregory Keating, partner and chair of Choate, Hall & Stewart’s whistleblower defense group and a member of the Labor Department’s Whistleblower Protection Advisory Committee.
In addition to the WPAC recommended practices, the mandate to conduct training has gained momentum in other arenas in the last 12 months. Keating says. California recently passed a law requiring training of managers on retaliation and the Equal Employment Opportunity Commission issued guidance in August that strongly encourages all employers to conduct training of management on retaliation and their role in preventing it.
“Implementing an effective anti-retaliation program is not intuitive and requires specific policies and commitments,” OSHA says. It identifies five key elements to creating an effective anti-retaliation program: management leadership, commitment, and accountability; system for listening to and resolving employees’ safety and compliance concerns; system for receiving and responding to reports of retaliation; anti-retaliation training for employees and managers; and program oversight.
Management leadership, commitment, and accountability
“To make preventing retaliation and following the law integral aspects of the workplace culture, it is important that senior management demonstrate leadership and commitment to these values,” the framework advises. “Senior management, such as the CEO and board, should lead by example to demonstrate a culture of valuing and addressing employees’ concerns regarding potential violations of the law and commitment to preventing retaliation.”
Ways that management can show a commitment to preventing retaliation include ensuring that the systems for reporting hazards, compliance concerns and retaliation—including systems for maintaining the confidentiality of employees who make reports—are implemented, enforced, and evaluated by a designated manager who is responsible and accountable for these programs, and has access to top managers and the board.
Confer with workers and worker representatives about creating and improving management awareness and implementation of anti-retaliation policies and practices.
Require training for managers and board members to make certain they understand what retaliation is, the employer’s and their own legal obligations (including their obligation to maintain the confidentiality of employees who make reports), the organizational benefits of anti-retaliation practices, and what it takes programmatically to prevent retaliation.
If appropriate, and taking into account an employee’s preference for confidentiality, publicly recognize the contribution of employees whose disclosures have made a positive difference.
Incorporating anti-retaliation measures in management performance standards and reviews is among the recommendations for ensuring that management is held accountable. There should also be strong codes of conduct and ethics programs that clearly identify whistleblower retaliation as a form of misconduct to ensure anti-retaliation policies and practices are enforceable.
Employers should also establish procedures that enable employees to report concerns (including through confidential or anonymous channels, when possible), provide for fair and transparent evaluation of concerns raised, offer a timely response, and ensure a fair and effective resolution of concerns. In developing these policies, employers should work with employees and worker representatives.
Among the recommendations for enabling employees to raise safety and compliance concerns:
Creating channels for reporting compliance concerns. These can include helplines, anonymous reporting through email boxes or websites, or reporting to a trusted official and/or an ombudsman.
Protecting the confidentiality or anonymity of employees who report concerns.
Ensure that confidentiality is not used as a shield to prevent whistleblowers from having access to information needed to exercise their rights.
Giving employees clear and accessible instructions on how they can report compliance concerns both internally and externally, and make clear that the employee has the right to choose which avenue to use to report concerns.
Ensuring that investigations of alleged retaliation are not tainted by preconceptions about what happened.
Ensuring that the program does not restrict or discourage employees from reporting retaliation allegations to the government or other appropriate regulatory and oversight agencies.
Keeping the reporting employee and management representatives informed of developments throughout the investigation and ensure respectful, proper closure of the issue.
After a reported problem has been investigated and resolved, there should be periodic follow-ups with the reporting employee to ensure continued protection from retaliation. The framework also suggests the use third-party, independent investigators when allegations involve particularly polarizing or high-stakes issues..
If possible, an anti-retaliation investigation should be completely independent from the corporation’s legal counsel, who is obligated to protect the employer’s interests. If the employer’s legal representative is involved in conducting the investigation, fully inform the whistleblower that the investigator represents the employer’s interests and that any attorney-client privilege will only extend to the employer.
“Effective training of employees and all levels of management and the board (if applicable) is key to any anti-retaliation program,” OSHA says.
Training should be provided in accessible language(s) and at a level that can be easily understood by the intended audience. It should also focus on the elements of the employer’s anti-retaliation program, including roles and responsibilities, how to report concerns internally and externally, options for confidential or anonymous reporting, and how to elevate a concern internally when supervisors or others do not respond.
Anti-retaliation training for managers should include, at a minimum:
Skills for defusing conflict, problem solving, and stopping retaliation in a work group.
How to respond to a report of a workplace concern while protecting an employee’s confidentiality and without engaging in retaliation, appearing to engage in retaliation, or questioning the motives for the report.
How to separate annoying or inappropriate behavior from the concern itself.
Consequences for managers who fail to follow anti-retaliation policies or respond to concerns inappropriately.
How to recognize that an employee believes there has been retaliation, when employers are required to act, and the potential legal consequences the employer and the manager face for inaction.
Monitoring and audits are two forms of oversight that can help employers gain insight into a program’s strengths and weaknesses and reveal whether program improvements are needed. Audits should be conducted by individuals who are independent of the process being audited.
Program oversight may examine a variety of sources, such as: anonymous surveys; confidential interviews with employees who reported compliance concerns or retaliation; narratives from injury or error reports; case studies of investigated issues and responses; claims department or risk management case files related to injuries or errors; and complaint files relating to reporting requirements.
The results of oversight activities like monitoring and auditing should be reported directly to the top managers and the board (if applicable). The results should also be shared with all levels of management and the workers covered by the program.
Top-level managers and board members (if applicable) should review in-depth results of monitoring and auditing, including dashboard reports on all program measurements. Management should also periodically discuss the program with employees and worker representatives (if applicable) to get ideas and feedback.
The framework cautions that as new anti-retaliation programs are implemented, the numbers of reported incidents may rise at first. “This often means that employees are more comfortable reporting, not that there are a larger number of concerns to report,” it says.