imagesBefore the expiration of the extended deadline last week, the U.S. Equal Employment Opportunity Commission received over 100 comments to its proposed Enforcement Guidance (“Proposed Guidance”) on workplace harassment. The revised guidance is the first revision to the EEOC’s workplace harassment guidance since the 1990s and the result of the July 2016 report by the EEOC’s Select Task Force, which notes that “During the course of fiscal year 2015, EEOC received approximately 28,000 charges alleging harassment from employees … This is almost a full third of the approximately 90,000 charges of employment discrimination the EEOC received that year.” See report here.

In addition to other aspects of the Proposed Guidance, certain commentators such as The Employment Law Alliance (“ELA”), the U.S. Chamber of Commerce (“The Chamber”), and The Society for Human Resources Management (“SHRM”) were particularly critical of the EEOC’s position on sexual orientation bias and harassment as inconsistent with existing law and outside the scope of the legislative intent of the statute.

The Proposed Guidance confirms the EEOC’s position that harassment based on gender identity and sexual orientation is prohibited under Title VII, and defines the two terms as follows:

Gender identity: Sex-based harassment includes harassment based on gender identity. This includes harassment based on an individuals’ transgender status or the individual’s intent to transition. It also includes using a name or pronoun inconsistent with the individuals’ gender identity in a persistent or offensive manner.

Sexual orientation: Sex-based harassment includes harassment because an individual is lesbian, gay, bisexual, or heterosexual.

Each of these definitions is accompanied in the Proposed Guidance by a footnote. As The Chamber noted in its comment, however, the single case referenced by the EEOC in its gender identity footnote is a case issued by the EEOC itself, not a Court. The EEOC’s footnote to its sexual orientation definition also highlights one of its own cases and contains an arguably one-sided and misleading representation of support for its own position.  As The Chamber notes, the Proposed Guidance fails to include several Court-issued rulings that explicitly reject the EEOC’s position. SHRM’s comment to the Proposed Guidance also expressed concern that the EEOC failed to clearly communicate in the body of the Proposed Guidance that its position is opposed to established law, as the EEOC did in other areas of the Proposed Guidance. The ELA similarly observed that the EEOC’s inclusion of “gender identity,” “transgender status,” an “individual’s intent to transition” and “sexual orientation” is beyond the plain language of Title VII and “reflects the commission’s impermissible trespassing into legislative rulemaking.”

While the EEOC has been similarly chastised by multiple other sources during the recent past for “legislating” and not regulating, the EEOC has continued to actively pursue its position on LBGT and gender identity issues and it is unlikely to take steps to substantially revise its position or the final Guidance.

White HouseThe Office of Management and Budget released President Trump’s “America First” budget blueprint for discretionary spending earlier this morning. Overall, it increases spending on defense, veterans’ health, immigration enforcement and combatting opioid abuse while decreasing civilian discretionary spending. Hardest hit are programs such as the National Endowment for the Arts, the Legal Services Corporation, The Corporation for Public Broadcasting, which were cut completely from the budget. The Environmental Protection Agency and State Department received deep cuts, which will reduce foreign aid. The Department of Labor will have its budget reduced by about one-fifth.

The Budget document provides the following introduction to the DOL appropriation request:

The Department of Labor fosters the welfare of wage earners, job seekers, and retirees by safeguarding their working conditions, benefits, and wages. With the need to rebuild the Nation’s military without increasing the deficit, this Budget focuses the Department of Labor on its highest priority functions and disinvests in activities that are duplicative, unnecessary, unproven, or ineffective.

The President’s 2018 Budget requests $9.6 billion for the Department of Labor, a $2.5 billion or 21 percent decrease from the 2017 annualized CR level.

The President would totally eliminate the Senior Community Service Employment Program (SCSEP), which retrains unemployed older workers for unsubsidized private sector jobs on the basis that it is ineffective. It closes underperforming Job Corps Centers, although it does not specify which ones. The budget would limit the Department’s International activity to ensuring that American Workers are protected under trade arrangements. While reducing federal subsidies for job training and employment service grants to states (in favor of greater reliance on state and local government and employer funding), it increases support for “evidence-based” apprenticeship programs to prepare individuals for jobs. Finally, it eliminates OSHA training grants, so that the agency can focus on its core mission of worker safety.

Overall, the cuts do not appear to drastically reduce the ability of the DOL to conduct its investigation and enforcement activities as much as might have been expected. There is much yet to be determined, however, and the budget process is likely to lead to substantial changes in the budget.  It is clear, however, that the Trump Administration is prepared to make major cuts in civilian discretionary spending in order to increase funding for border security and military capacity.

Government and US FlagRepublican leaders in the U.S. House of Representatives have introduced a bill intended to replace certain key provisions contained within the Affordable Care Act (commonly referred to as “Obamacare”). The Republican-sponsored legislation is named The American Health Care Act (“AHCA”). President Donald J. Trump has placed his support behind the bill.

Republicans revealed the proposed language of the AHCA to the public last week. And, late last week, the bill overcame its first major hurdle by passing through two House committees on party-line votes. The future of the AHCA, as currently written, however, remains uncertain. Most, if not all, Democrats in Congress are expected to oppose the bill. Meanwhile, Republicans are experiencing difficulties in obtaining the support of different factions of their Congressional membership. Some Republicans argue that the AHCA does not go far enough to dismantle the ACA, while other Republicans are concerned about the effects that the AHCA will have on those with lower incomes. Despite Republican control of Congress, the bill will not become law without the support of many of these Republicans.

House Republican leaders created the AHCA under the budget reconciliation process, and, therefore, its scope is limited to amending certain tax provisions in the ACA. Other aspects of the ACA would have to be amended or repealed through alternative legislative measures. Nevertheless, employers should be aware of a couple of the effects that the AHCA would have on them, if enacted:

  • First, the AHCA would effectively eliminate the tax penalties on employers for failing to provide, and on individuals for failing to maintain, minimum essential coverage, as currently required under the ACA. Although the bill would not dispose of the insurance coverage requirements, without the corresponding tax penalties, they would not have their desired effects. Because the employer mandate would technically remain, employers would have to continue to follow the cumbersome ACA reporting requirements, at least for now.
  • Second, the AHCA would leave the 40-percent excise tax on high-cost employer-sponsored health insurance plans in place. This excise tax is commonly referred to as the “Cadillac Tax,” and this aspect of the ACA has been of particular interest to unionized employers whose union employees have negotiated for strong health insurance coverage. Under the AHCA, the Cadillac Tax would now take effect in 2025, instead of 2020. Unlike previous iterations of the bill, however, there are no caps on tax exclusions for such plans.

The AHCA already underwent significant markup at the end of last week and will certainly experience further revisions, as other House Committees review the proposed legislation. The soonest that the AHCA could be placed before the full House is late March. The bill would then proceed to the Senate.

The U.S. Congressional Budget Office just released its report on the AHCA. According to the CBO, the AHCA would result in fewer insured Americans but would reduce the deficit and would eventually reduce insurance premiums, though not initially.

1283811-protests-1483480044-672-640x480Last week workers across the United States participated in a national protest aimed at President Trump’s immigration policies. Organized by advocacy groups and promoted largely through social media, “A Day Without Immigrants” involved an organized effort to urge workers to stay home in protest of the new administration’s immigration policies and actions, including recent enforcement raids, the proposed border wall, and the high-profile Executive Order on immigration and refugees. Employers’ reactions have ranged from closing their businesses in support of the protests to terminating employees for not coming to work.

This likely is not the end of such protests. On March 8, organizers of last month’s Women’s March on Washington plan to hold “A Day Without a Woman” protest, asking women to stay home from work in support of various issues that impact women. Other less publicized protests by different groups are also planned.

Impacted employers that seek to enforce their attendance rules and other workplace policies must carefully consider potential legal issues when reacting to employees who miss work in support of these protests. For example, the National Labor Relations Act (“NLRA”) protects both unionized and non-unionized workers who engage in protected concerted activity. Typically, this involves two or more workers acting together to improve or protest various terms and conditions of their employment, including protests related to pay, safety, hours of work, and other workplace issues. The discipline or discharge of employees who engage in protected concerted activity can result in charges of unfair labor practices before the National Labor Relations Board and potential liability. However, employee actions or protests that are purely political in nature, with no real connection to the workplace, are unlikely to qualify for protection under the NLRA.

The true objectives behind workers’ absences in supporting these causes can be unclear. The upcoming “A Day Without a Woman” protest identifies a number of diverse concerns, some of which arguably could relate to workplace issues, and some of which clearly do not. The organizers’ website poses the following questions in asking supporters to withhold their labor on March 8:

  1. Do businesses support our communities, or do they drain our communities?
  2. Do they strive for gender equity or do they support the policies and leaders that perpetuate oppression?
  3. Do they align with a sustainable environment or do they profit off destruction and steal the futures of our children?

Employers who choose to discipline or terminate employees who elect to miss work as part of these protests need to consider, on a case-by-case basis, whether an employee’s actions qualify as a protected protest related to workplace conditions, particularly when they can be linked to their own workplace, or are a more generalized expression of support for a political cause. Employees who explicitly tie their absences to issues in the workplace are far more likely to be protected under the NLRA.

Employers also must consider the potential applicability of both state and federal anti-discrimination laws, like Title VII, when reacting to employee absences. Both the “A Day Without Immigrants” and “A Day Without a Woman” protests potentially implicate protected classifications under the anti-discrimination laws – e.g., national origin and gender. Employers that choose to pursue discipline or termination may potentially face allegations of discrimination, either based upon assertions that the employer harbored animus towards a particular protected group (and its causes), and/or that the employer selectively enforced its policies to the detriment of the protected group. Employers should base any disciplinary or discharge actions on previously established and promulgated workplace policies, including attendance rules and no-call/no-show policies. Employers also should ensure that they have acted consistently with respect to past employee absences (like the parade in Cleveland after the Warriors blew a 3-1 lead in the 2016 NBA Finals). A prior, consistent history of discipline or discharge in similar situations will help protect against allegations of discrimination.

Forms-2It’s no secret that Donald Trump is fulfilling his signature campaign promise to address immigration reform. So far, most of the media attention has been on the U.S.-Mexico border wall and the travel/refugee ban. For employers, however, other issues require attention.

One major issue requiring employers’ attention is I-9 compliance. In an Executive Order issued on January 25, 2017, titled “Enhancing Public Safety in the Interior of the United States,” President Trump directed all executive agencies to prioritize the enforcement of U.S. immigration laws. Such enforcement will very likely include more frequent and significant  audits and investigations of employers’ I-9 compliance.

A few days earlier, on January 21, 2017, the United States Citizenship and Immigration Services began requiring employers to use a new version of the I-9 form for all new hires. Employers who fail to use the proper form can be subject to civil penalties exceeding $2,000 for every improper form used. Thus, hiring 10 employees with the expired I-9 form can trigger 10 separate penalties.

Here is a link to the new form and instructions for completing it: https://www.uscis.gov/i-9. Note that unlike prior versions, the instructions are now contained in a separate document and are more detailed.

Otherwise, the new form itself contains only a few minor changes (for example, permitting the use of a P.O. Box for an address). However, there is now an “electronic” version available that includes drop-down menus and informational pop-up boxes to facilitate correct completion. This version is not mandatory, so employers can still print and complete the I-9 by hand.

While the I-9 form has been around for a number of years, its requirements are technical and proper completion requires solid training. Particularly with the new administration’s heavy immigration focus, we strongly recommend that  employers audit their I-9 processes, ensuring that all forms are properly completed and that all employees are authorized for employment in the U.S.

If you have any questions about I-9 compliance, please contact us.

Earlier this week, Missouri’s Governor Eric Greitens signed legislation making Missouri the 28th state to pass Right to Work legislation. New Hampshire is considering legislation that, if passed, will be signed by its Republican governor, Chris Sununu, making it the 29th state. Right to Work is, of course, legislation permitted under the Labor Management Relations Act that prohibits unions from requiring bargaining unit employees to pay union dues or dues equivalents. Under current law, employees in states without right to work laws may be required either to join and remain members of the union representing them (paying the normal dues), or to pay the union what are called “Fair Share Fees”. These Fair Share Fees are calculated to be the union’s cost of representing employees in the bargaining unit, without inclusion of extraneous amounts included in the dues amount, such as political donations to candidates. Unions obviously prefer to have all employees contributing to their operations and political endeavors, and the number of employees opting out in non-RTW states is generally far less than the percentage opting out in RTW areas. Unions must represent all bargaining unit members fairly, even without receiving any payments from those in RTW states who chose not to pay. Employers generally support RTW efforts, since unions receive less funding and are weaker than otherwise. Employees prefer RTW since they have the choice of joining the union if they want, or staying out of it, even if there is a union present in the workplace. They can be “free-riders”—benefitting from any results of union bargaining but without paying anything to the union.

States have been the focus of RTW legislation in recent years, with Kentucky, Indiana, Michigan and Wisconsin all passing laws in the heartland. Wisconsin’s law has encountered still-pending challenges from unions on the basis that it forces unions into a position of involuntary servitude by having to represent dissenters. It survived a federal district court decision, now appealed to the U.S. Court of Appeals for the Seventh Circuit (which upheld Indiana’s RTW law), and was found unconstitutional under Wisconsin’s Constitution by a local county judge, whose decision is now on appeal at the district level.

An additional front is being opened in the RTW war. U.S. Representatives Joe Wilson (R-SC) and Steve King (R-IA) have introduced the National Right to Work Act, HR 785, which would make Right to Work the uniform law in the U.S. The law faces opposition from the labor movement, and would almost certainly encounter a filibuster in the Senate. Given the number of Democratic senators in states that have adopted RTW laws, it is likely that the House will pass the bill and send it to the Senate. This would force RTW state Democrats up for re-election in 2018 to take a position on the bill. Then, depending upon how the midterm elections turn out, the opportunity for Senate passage might increase, or passage could be foreclosed for at least another two years.

President Donald Trump has nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch to fill the U.S. Supreme Court vacancy caused by the death of Justice Antonin Scalia nearly one year ago. Known for his classical constructionist approach, Gorsuch is expected to restore the ideological balance that existed before Justice Scalia’s passing, with four conservatives, four liberals and Justice Anthony Kennedy (for whom Judge Gorsuch worked as a law clerk) serving as a swing vote.

If confirmed, Judge Gorsuch’s presence on the High Court will invariably impact the judicial landscape of labor and employment law. More than three dozen petitions are currently pending before the Court, seeking interpretation of laws such as the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA), Title VII of the 1964 Civil Rights Act (Title VII), the NLRA, the ADA and others.

Here are a few issues to watch:

Agency Fees

On March 29, 2016, the Supreme Court issued a 4-4 opinion in Friedrichs v. California Teachers Association, in which the Court summarily upheld the Ninth Circuit Court of Appeals’ decision allowing public sector unions to tax employees who decline union membership with “agency” or “fair share” fees similar to the cost of union dues. Justice Scalia, who engaged in lively questioning during oral argument in this case but died before the opinion was issued, was expected to cast the fifth vote in favor of the employees, who argued that the agency fees violated their First Amendment right to freedom of speech and association. But with Scalia’s absence, the Court was deadlocked. 

The Friedrichs case was expected to have critical implications on the continued viability of public sector unions. While the plaintiff’s petition for rehearing has been denied, more cases like this are bubbling up through the courts. Changes also have been made through legislative action, with “right to work” laws having been enacted in 27 states and Guam. Under the right to work laws, employees in union shops may maintain employment without having to pay union dues or other fees.

Arbitration Agreements and Class Wide Waivers of NLRB Claims

After several requests, the Supreme Court has agreed to review the ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012), in which a 3-2 majority of the National Labor Relations Board (NLRB) found that class action waivers in arbitration agreements violate Section 7 of the National Labor Relations Act. On January 13, 2017, the Supreme Court granted certiorari in three cases involving the validity of the D.R. Horton rule. One case, NLRB v. Murphy Oil USA, Inc., arises out of a Board decision finding that an employer had engaged in an unfair labor practice by entering into arbitration agreements with its employees, and the other two, Epic Systems Corp. v. Lewis and Ernst & Young LLP v. Morris, are private-party disputes in which employees invoked D.R. Horton to challenge their arbitration agreements.

The Supreme Court has historically favored arbitration agreements in other settings, and these concepts have been extended to the employment setting. With certain delineated exceptions, employers are generally able to implement arbitration agreements with class wide waivers to mitigate their litigation risk.

Now that the D.R. Horton issue has been accepted for review, Judge Gorsuch’s confirmation may provide employers with hope that the Court will extend the FAA’s footprint, honoring arbitration agreements in the union setting.

Joint Employers

Another recent NLRB ruling set for review this year is the board’s August 2015 decision in Browning-Ferris Industries of California, Inc., in which the Board found that a California waste management company (Browning-Ferris) jointly employed its staffing agency workers. The decision effectively rewrote the NLRB’s test for deciding whether two affiliated companies are joint employers that share bargaining responsibilities when workers organize and legal liability when they file suit. Before the decision, the joint employer standard rested on a business having “direct and immediate” control over terms and conditions of employment. The Browning-Ferris Board revised the standard to include “indirect control,” or even the “ability to exert” such control. When Browning-Ferris thereafter refused to recognize and bargain with the newly elected union, an unfair labor practice charge was filed, and the Board found another violation of the Act.

The Browning-Ferris cases are part of a growing body of litigation over joint employer liability that is anticipated to take a significant toll on employers in coming years. Employees have sought to apply the new joint employer standard outside of the NLRA, including in cases involving alleged violations of OSHA, the FLSA, the FMLA and other statutes.

The Browning-Ferris, currently on review before the D.C Circuit Court of Appeals, warrants close monitoring. Judge Gorsuch’s confirmation would restore hope that employers will regain some clarity into the now amorphous and overly expansive definition of joint employer liability.

Discrimination Based Upon Sexual Orientation

A final issue poised for review is whether Title VII bars employers from discriminating against employees because of their sexual orientation. Courts have long held that it does not. However, the Seventh Circuit may go against the status quo following a recent en banc rehearing of Hively v. Ivy Tech Community College. In that case, the plaintiff-employee claimed that the employer violated Title VII by failing to award her a full time position because of her sexual orientation. The issue is squarely one of statutory construction, and the en banc court has been tasked with determining whether Title VII can be interpreted as recognizing a discrimination claim based upon sexual orientation as a sub-segment of prohibited gender bias. During the en banc hearing, the Court challenged the notion of strict construction, pointing to other acts, such as the Sherman Act, that are interpreted far differently now than when they first were enacted. If the Seventh Circuit rules in favor of the employee, the resulting split in circuits may signify a need for High Court intervention, provided the legislature doesn’t get there first.

Conclusion

Judge Gorsuch has a reputation as someone who would follow the general judicial philosophy of Justice Scalia, but without some of the more acerbic oral argument commentary for which Justice Scalia was known. For an enlightening insight into Judge Gorsuch’s personal views on Justice Scalia and his legacy, this 2016 Canary Lectureship article by Judge Gorsuch is well worth reading.

Assuming no surprises, it is likely that Judge Gorsuch will be confirmed over strenuous Democratic opposition and will impact the Court for many years.

The time between “legalization” and implementation seems to have caused confusion about the current use of medical marijuana in Ohio. HB 523 became “law” on September 28, 2016. Regulations for cultivators are set to be finalized by May 6, 2017. Regulations for physicians, testing laboratories, processors, patients, caregivers, employees, and dispensaries are scheduled to be finalized on September 8, 2017.

There is at least one medical center where a physician or physicians issue “recommendations” for medical marijuana to patients who are found to have a “qualifying condition” under H.B. 523. This center also issues an “affirmative defense card.” Since none of the procedures are in effect at this time, this practice presents several issues.

One issue is whether a physician can recommend marijuana to patients before he/she has a certificate to recommend. Currently, there are no final regulations in place for physicians to obtain a certificate to recommend medical marijuana. Additionally, according to H.B. 523, a patient can only legally obtain medical marijuana after receiving a written recommendation from his or her doctor that certifies a certain number of criteria are met. There are currently no regulations in place that would enable a physician to issue such a recommendation. Thus, it would seem to be currently impossible for a “certificated” physician to lawfully “recommend” the current use of medical marijuana in Ohio.

Under these circumstances, no individual can currently possess an “affirmative defense card” that would be valid in Ohio. Perhaps the “affirmative defense card” issued by this medical center is effective in states that have reciprocity with other medical marijuana states? The closest of these states to Ohio is Michigan. In Michigan, a visiting qualifying patient can only obtain medical marijuana if that patient has an ID card or its equivalent “issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States.” Since the affirmative defense card is not issued by the State of Ohio, as that program is not yet operational, it is doubtful that Michigan dispensaries can legally dispense marijuana to patients who have been issued an ID card by a private Ohio medical center.

If Michigan dispensaries do dispense medical marijuana to Ohio patients with a private “affirmative defense card,” another related issue is whether patients are violating federal law by bringing marijuana across state lines to Ohio. Former Deputy Attorney General, James Cole, issued a memorandum to all United States Attorneys on August 29, 2013 to provide guidance on the proper prioritization of marijuana enforcement. One enforcement priority, where the Department of Justice may prosecute, is if there is diversion of marijuana from states where it is legal to other states.

Ohio has enacted a law that set forth a process that will make medical marijuana legal, but the details of that legalization are being phased in over a two-year period. This seems to have resulted in marijuana being recommended and dispensed to, and consumed by, citizens of the State of Ohio before these practices are lawful. We are not aware of any criminal prosecutions arising out of this situation, however, and we do know that individuals are acting as if they believe it is legal to consume medical marijuana in Ohio. We would say it is not.

In Ohio, the default rule governing employment relationships is employment at-will. Absent a legally recognized exception, an employer can terminate the employment of an at-will employee for any lawful reason, without cause or notice, and not incur liability. One of the lesser-known exceptions to the rule of employment at-will relates to the termination of minority shareholders of close corporations who are also employees.

The Ohio Supreme Court has defined a “close corporation” as a corporation with few shareholders and whose shares are not generally traded on a national securities exchange or regularly quoted on an over-the-counter market. [1] Ohio courts have recognized that, given the nature of a close corporation, majority shareholders can easily abuse their corporate control to the disadvantage of the minority shareholders. Minority shareholders are not only vulnerable because they are small in number, but also because they have no readily available market for their stock.

To lessen the risk of abuse, Ohio courts have held that majority shareholders of a close corporation owe a heightened fiduciary duty (i.e., utmost good faith and loyalty) to their minority shareholders. A majority shareholder breaches this fiduciary duty when control of the close corporation is utilized to prevent the minority shareholder from having an equal opportunity in the corporation. In other words, control of a close corporation cannot be used to give the majority benefits that are not shared by the minority.

What if the minority shareholder is also an employee of the close corporation? Ohio courts have recognized that a minority shareholder’s employment “often constitutes the major return on the shareholder’s investment,” without which “the minority shareholder is denied an equal return on the investment.” [2] As a result, a majority shareholder in a close corporation cannot terminate the employment of a minority shareholder without “a legitimate business purpose.” [3]

As Aesop noted at the conclusion of “The Fox and the Lion,” familiarity can breed contempt. In the context of close corporations, contempt can lead majority shareholders, mistakenly relying on the rule of employment at-will, to terminate a minority shareholder without a legitimate business purpose. In doing so, the majority shareholder violates the heightened fiduciary duty owed to the close corporation’s minority shareholder.

Before terminating a minority shareholder, a majority shareholder should carefully scrutinize the business purpose behind the termination and consistently document the existence and legitimacy of that business purpose.

If you would like help evaluating minority shareholder issues facing your business, please contact Frantz Ward partner Tim Richards.


[1] Crosby v. Beam, 47 Ohio St.3d 105, 107 (Ohio 1989).
[2] Kirila v. Kirila Contrs., Inc., 2016-Ohio-5469, ¶33 (Ohio 11th Dist. Ct. App. 2016).
[3] Tablack v. Wellman, 2006-Ohio-4688, ¶122 (Ohio 7th Dist. Ct. App. 2006).

Orange Safety SignsOn January 13, 2017, the Occupational Safety and Health Administration issued Recommended Practices for Anti-Retaliation Programs, which are intended to allow employees to raise safety issues arising in the workplace without fear of retaliation. The 12-page document sets forth recommendations that apply to private and public employees protected by the more than twenty (20) whistleblower laws enforced by OSHA.

Some of the key items recommended by OSHA for an effective anti-retaliation program are:

  1. Management leadership, commitment, and accountability.
  2. System for listening to and resolving employees’ safety and compliance concerns.
  3. System for receiving and responding to reports of retaliation.
  4. Anti-retaliation training for employees and managers.
  5. Program oversight.

Further discussion of these key items may be found in the Recommended Practices. Employers should review these recommendations and the discussion surrounding them, as we anticipate that OSHA will review the items as part of any investigation or inspection.

There is much in the OSHA Guidance that is common sense, but there are several items included that employers will want to consider. They are reflected in the following quotes from the Guidance (emphasis supplied):

Employer policies must not discourage employees from reporting concerns to a government agency, delay employee reports to government, or require employees to report concerns to the employer first.

[Employers should…] Eliminate or restructure formal and informal workplace incentives that may encourage or allow retaliation or discourage reporting. Examples of incentives that may discourage reporting or encourage retaliation include rewarding employee work units with prizes for low injury rates or directly linking supervisors’ bonuses to lower reported injury rates.

Ensure that any employment agreement or policy that requires employees to keep employer information confidential does not prohibit or discourage employees from reporting or taking the steps necessary to report information reasonably related to concerns about hazards or violations of the law to any government agency. Steps that may be necessary include conferring with legal counsel, union or other worker representatives, or with medical professionals regarding the employee’s concerns. Employers should not use confidentiality or non-disclosure agreements to penalize, through lawsuits or otherwise, employees who report suspected violations of the law or take steps necessary to make such reports.

If possible, make the anti-retaliation investigation 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.”

To the degree that OSHA applies this Guidance in connection with investigations of alleged retaliation, employers should have a record that they considered and, to the degree applicable to their circumstances, adopted recommendations from it.