Back to Basics is a weekly feature that highlights important but possibly overlooked information that any EHS professional should know. This week, we examine OSHA’s whistleblower protections and how to establish an anti-retaliation program in the workplace.
Reporting safety issues is an integral part of maintaining an effective, positive safety environment in the workplace. Workers must be able to feel safe reporting violations without fear of retaliation, and EHS leaders and management are responsible for creating an environment in which reporting can be done in a productive manner.
According to OSHA, retaliation occurs when an employer fires an employee or takes any type of adverse action against an employee for engaging in protected activity. OSHA defines an adverse action as one which would dissuade a reasonable employee from raising a concern about a potential violation or engaging in any other related protected activity. Adverse actions can include firing, demoting, or laying off an employee, denying them overtime, promotion, or benefits, changing their pay or hours, or engaging in intimidation, harassment, or making threats towards the employee.
There are several statues enforced by OSHA which cover several industries and contain whistleblower protections that help keep workers safe from retaliation. The more well-known of these statutes include the Affordable Care Act (ACA), the Clean Air Act (CAA), the Occupational Safety and Health Act (OSH Act), and the Sarbanes-Oxley Act (SOX). OSHA provides a full list of these statues with each of their whistleblower protections as part of their Whistleblower Protection Program.
Employers should create an anti-retaliation program within their workforce in order to remain in compliance and to offer their workers a more sustainable, supportive environment. OSHA outlines the five key elements that should go into building an anti-retaliation program: management commitment, a compliance concern response system, an anti-retaliation response system, anti-retaliation training, and program oversight.
First and foremost, senior management needs to show a commitment to the policies they put forth and to holding themselves and all managers at all levels accountable for how they respond to employee concerns, says OSHA. Management must make sure that systems for reporting hazards, compliance issues, and retaliation are implemented, enforced, and evaluated by a designated manager who is responsible and accountable for these programs. They must listen to worker feedback and require training for managers and board members to make sure they understand retaliation and their legal obligations to maintain employee confidentiality when a report is made.
OSHA recommends holding management accountable by incorporating anti-retaliation measures in performance standards and reviews, implementing strong codes of conduct and ethics programs that define retaliation as a form of misconduct, ensuring anti-retaliation policies and practices are enforceable, and applying appropriate consequences to managers who retaliate or violate confidentiality.
Compliance concern response system
Employers should have a compliance concern response system that allows employees to report concerns, provides fair and transparent evaluation of the concerns, offers a timely response, and ensures a fair and effective resolution of concerns. Employers should work with employee representatives to establish these procedures, and reporting should be kept anonymous if possible.
They must create at least one, but preferably multiple channels for reporting compliance concerns that could include helplines, anonymous reporting through email websites, or reporting to a trusted official. While confidentiality should be protected, it should not be used as a shield to prevent whistleblowers from having access to information they may need while exercising their rights, OSHA states. Employees must be given clear and accessible instructions on how they can report compliance issues internally and externally, and they must not be penalized for reporting through a different means.
Anti-retaliation response system
Leaders need to establish an anti-retaliation response system in which employees who believe they have experienced retaliation can access independent channels for reporting it, in order to avoid reporting to the manager who they believe retaliated against them. Employers should conduct prompt and thorough investigations into retaliation claims that take all reports of retaliation seriously and maintain employee confidentiality as much as possible.
OSHA recommends being transparent to the employee about how the investigations are conducted, and trying to examine the case without bias or preconceptions, listening to all sides of the story before concluding the investigation. If the findings show that retaliation has occurred, employers must remedy the retaliation and review the anti-retaliation programs to determine why the program failed and what changes should be made, while involving worker representatives in the evaluation.
Anti-retaliation training for employees, the board, and all levels of management is crucial because it gives everyone the knowledge, skills, and tools they need to recognize, report, prevent, and properly address hazards, potential legal violations, and retaliation, says OSHA. Anti-retaliation training should cover the relevant laws and regulations, employees’ rights and obligations to report hazards and violations, statutory rights, the elements of the anti-retaliation program, and what constitutes retaliation.
For managers, training should also include how to defuse conflict and problem solve, respond to a report while protecting confidentiality and avoiding retaliation, and the consequences for managers who fail to follow anti-retaliation policies. They must also learn how to recognize that an employee believes there has been retaliation, when employers are required to act, and the consequences of employer inaction.
Effective program oversight is the final ingredient to a strong anti-retaliation program. OSHA recommends using monitoring and audits, as they can help employers see the program’s strengths and weaknesses, and uncover where changes are needed. OSHA defines monitoring as an ongoing analysis of whether the program processes in place are achieving the organization’s planned results and program goals. Auditing is an independent, formal, and systematic approach designed to determine whether program processes are efficient, effective, and working as intended. Audits should be conducted by individuals who are independent of the process being audited.
Under oversight, several topics can be monitored and audited, like trends in issue reporting and resolution, if managers are following program policies, if workers are unafraid of retaliation and reporting, and if the types of measurements used to track issue response and improvements are discouraging reporting rather than incentivizing it. When an anti-retaliation program is first implemented, the number of reported incidents will likely rise, but that is a good sign indicating that employees feel more comfortable reporting.
For more information, see OSHA’s full list of recommended practices for anti-retaliation programs here.