Yesterday we looked at the Occupational Safety and Health Administration’s (OSHA) overall goals for antiretaliation programs. Today we’ll look at the role that OSHA expects company management to play in creating an antiretaliation program.
Retaliation against a worker who has reported a regulatory violation typically comes from some level of management, so, it is with management that any antiretaliation policies and practices necessarily begin. When OSHA looks at an employer to determine whether retaliation has taken place, it will ask whether management has taken these steps toward discouraging retaliation.
Setting the Tone
When it comes to evaluating an employer’s health and safety program, OSHA typically looks not only at what happened, but also at what efforts management made to prevent any hazardous conditions or regulatory violations. Likewise, when investigating a whistleblower complaint, OSHA will look not only at what happened, but also at any efforts company management made to discourage or prevent retaliation.
Per its new guidelines, OSHA will look at whether senior management has:
- Designated a program manager. Who is responsible for ensuring that the antiretaliation program is implemented, enforced, and evaluated for effectiveness? This responsibility should be given to a specific, designated individual who has access to senior management and to the board (if applicable).
- Provided for confidentiality. Sometimes, unscrupulous employers will surreptitiously release the name or other identifying information about an employee who reported a compliance issue, as a way of encouraging retaliation against that worker by his or her coworkers. An effective antiretaliation program should protect the confidentiality of workers who report problems.
- Received training. Managers and board members should be explicitly told what retaliation is and what their legal responsibilities are with respect to preventing retaliation.
- Evaluated the program’s effectiveness. To establish this, OSHA wants to know exactly how the company has gauged workers’ willingness to report compliance issues, and how the company identifies and responds to any situations that could result in or have resulted in retaliation. Top management should be aware of the results of these evaluations.
- Provided a mechanism for recognition. Some employees want to be publicly recognized when they make valuable contributions to the company. The employer should always account for an employee’s preferences with respect to privacy and confidentiality, but if the worker wishes to participate and be recognized, OSHA also recommends that management make provision for this. For example, an award could be created for workers whose reports of compliance issues have a positive impact on the employer.
- Held itself accountable. In order to build management accountability into the antiretaliation program, OSHA recommends including antiretaliation measures in management’s performance standards and reviews.
- Made the antiretaliation policy and practices enforceable. Whistleblower retaliation, including violating the confidentiality of a reporting employee, should be identified in the employer’s code of conduct and ethics programs as a form of misconduct, subject to the employer’s disciplinary policy.
A Culture of Nonretaliation
Workers who report compliance issues may be seen by the employer as disloyal or as bringing harm to the company. In such a culture, an employee who reports a compliance issue becomes a target of abuse and retaliatory behavior. OSHA encourages employers to create a different culture: one in which raising concerns about conditions or activities in the workplace is valued. Workers should know how they can report concerns—anonymously, if they choose—and employers should evaluate their concerns in a way that is fair and transparent. Concerns should be addressed and resolved in a timely fashion. Such a culture can improve regulatory compliance, decrease the risk of retaliatory behavior, and create a better working environment for all employees—one that is founded on mutual interest.