The Occupational Safety and Health Administration’s (OSHA) approach to investigating whistleblower complaints—something it is authorized to do under 22 separate government standards—is very similar to its approach to investigating reports of reported safety and health compliance issues. In issuing its recent guidelines for establishing antiretaliation programs, OSHA outlines program elements that will look very familiar to anyone who has used other OSHA guidelines. One similarity is OSHA’s recommendation that such programs include training for management and workers.
Here’s a look at what OSHA would like to see in a training program designed to prevent retaliation against employees who report regulatory compliance issues.
When OSHA revised its 10-hour training requirements, it strengthened the requirement to train workers in their right to refuse to do hazardous work and to report violations to OSHA. Likewise, in these antiretaliation guidelines, OSHA specifies that training for both management and workers should cover how to recognize potential violations of the law as well as how to report and prevent or address hazards and potential violations of the law. In addition, OSHA wants both management and workers to understand what sorts of actions can be categorized as “retaliatory.” OSHA also specifies that training should be provided in a language and at a level that employees can readily understand.
Training for All Workers
Specifically, OSHA will look for antiretaliation training programs that cover the following topics for all workers:
Relevant laws and regulations. Employees and managers should understand the whistleblower provisions of the specific standard that covers their business; for example, the standards have varying deadlines for filing whistleblower discrimination claims.
The employer’s commitment to compliance. Training should stress the employer’s commitment to compliance and willingness to address compliance concerns reported by any employee, including permanent employees, contractors, and temporary workers. Compliance with the company’s own code of ethics, including prohibitions on retaliation, should also be stressed.
Employees’ rights and obligations. Employees and managers should be aware that they have the right to report potential hazards and violations of the law not only to their employers, but also to law enforcement, including OSHA and other government agencies—and that they are not required to report concerns to their employer first.
The prohibition on retaliation. Workers and managers should understand that employees who report concerns are protected by statute from retaliation.
Details of the employer’s antiretaliation program. This should cover the roles and responsibilities of individuals responsible for the antiretaliation program, as well as information on how workers can report concerns internally and externally—and how they can elevate a concern internally, if they do not receive a response—and options for confidential or anonymous reporting.
What retaliation looks like. Direct actions such as firing or laying off, demoting, denying overtime or promotion, disciplining, denying benefits, failure to hire or rehire, reducing pay or hours, and blacklisting are often used to retaliate against workers. Retaliation can also take the form of workplace mistreatment, such as ostracizing, mocking, intimidating, and making false accusations of poor performance against workers who report concerns.
Training for Managers
In addition to the training all workers should receive, managers should be trained in:
Addressing retaliation. Managers should know how to defuse conflict, solve problems, and put a stop to retaliation within a work group.
Responding appropriately to reports. When a worker reports an issue, the manager should protect the employee’s confidentiality and address the report without questioning the worker’s motives and without engaging or appearing to engage in retaliation.
Responding to the concern, not to the worker. A worker who is reporting a compliance issue may behave in annoying or even inappropriate ways (for example, the worker may be openly angry about the situation). The manager’s response should separate the concern from the behavior.
Consequences for violations. Managers should know what the penalty is for failing to follow antiretaliation policies or for failing to respond to concerns.
Legal consequences. If managers fail to recognize and address retaliation, there may be legal consequences for the employer.