The Occupational Safety and Health Administration (OSHA) has long administered the whistleblower protection programs for itself and other federal agencies. If a worker speaks up about regulatory compliance issues or safety, and suffers a change in work status, OSHA will investigate to determine whether the change resulted from illegal retaliation. But OSHA doesn’t just want employers to leave whistleblowers alone. The agency also wants employers to put programs in place that encourage workers to report violations and concerns.
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The guidance is voluntary, not mandatory—but if OSHA comes to investigate a whistleblower discrimination complaint, this is the sort of program the agency will look for, in its effort to determine whether retaliation took place.
A Better Workplace Culture?
OSHA wants more from an antiretaliation program than for it to simply prevent the punishment of whistleblowers by their employers. OSHA also wants these programs to:
- Encourage employees to report their concerns. OSHA wants workers to speak up when they observe compliance issues in the workplace. If workers believe that they will be punished for reporting problems in the workplace, they may choose to say nothing—and problems may not be addressed until it is much more difficult to correct them.
- Address any reported concerns. Employees “blow the whistle” when they believe that their concerns about safety or regulatory compliance are not addressed by their employers. OSHA believes that, by outlining exactly how the employer will respond to workers’ concerns, employers will make whistleblowing—and retaliation for whistleblowing—unnecessary.
OSHA contends that a program that encourages workers to report concerns without fear of reprisal, and in the confidence that their concerns will be taken seriously and addressed appropriately, will also benefit their employers by:
- Helping to create a “a positive workplace culture”
- Improving employee satisfaction and engagement
- Protecting workers and members of the public from the harm that compliance with federal laws and regulations is intended to prevent
OSHA may be overselling its program somewhat—it certainly doesn’t cite any scientific studies linking antiretaliation programs with stronger workplace culture and employee satisfaction. Nevertheless, the fact remains: OSHA is the agency responsible for enforcing whistleblower protections. When OSHA conducts an investigation, it will look closely at whether employers have encouraged workers to expect and strive toward regulatory compliance in the workplace, or whether such expectations—and any efforts to identify and correct problems—have been subtly or overtly discouraged.
Protecting the Right to Report
OSHA’s first requirement for an antiretaliation program is that the employer must not institute policies that:
- Discourage reporting. Workers must feel free to report their concerns to a government agency.
- Delay reports. The employer’s policy must not delay employee reports to government.
- Require employer notification first. Employers can and should encourage employees to report problems to them first, but they cannot require them to do so.
- Mislead employees about their rights. The antiretaliation program must not discourage or mislead employees about their right to report both compliance concerns and retaliation outside the company.
OSHA considers it very important that employees—and management—know about their right to report concerns directly to the employer and recommends that employers institute policies and provide training for management and employees that clearly explains:
- That employees have the right to report hazards, violations of the law, and retaliation externally; and
- That it is illegal to retaliate against employees for reporting externally.
Tomorrow, we’ll look at OSHA’s expectations for management in antiretaliation programs.