On 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:
- 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.
- 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.