Do you have a robust antiretaliation program? Are you prepared for an Occupational Safety and Health Administration (OSHA) whistleblower investigation?
OSHA has had whistleblower protection authority since its beginning. Section 11(c) of the Occupational Safety and Health Act of 1970 established protections for those who file safety and health complaints or participate in inspections or investigations.
The act also established OSHA’s authority to investigate whistleblower complaints and weigh any evidence of retaliation. Employees who have experienced retaliation are entitled to relief, including getting rehired or reinstated to their former positions with back pay.
OSHA now enforces whistleblower protections under more than 20 federal statutes, including aviation, commercial motor carrier, consumer product, food, motor vehicle, nuclear, and pipeline safety, as well as anti-money laundering, criminal antitrust, environmental, financial reform, health insurance reform, maritime, public transportation, railroad, securities, and tax laws.
Within the past year, several high-profile whistleblower protection cases have come to a conclusion:
- The agency this month ordered ExxonMobil Corp. to reinstate two illegally terminated employees when the company suspected the two had leaked company information to The Wall Street Journal. Relying on its authority under the Sarbanes-Oxley Act, OSHA ordered the company to reinstate the employees immediately and pay them more than $800,000 in back wages, interest, and compensatory damages.
- In September, the agency announced that Wells Fargo violated the whistleblower protection provisions of the Sarbanes-Oxley Act by improperly terminating a Chicago area-based senior manager in the company’s commercial banking division. The agency ordered the San Francisco-based bank to pay the employee more than $22 million, covering back wages, front pay, interest, lost benefits and bonuses, and compensatory damages.
- The Labor Department filed a federal whistleblower protection suit on OSHA’s behalf on August 29, alleging that a Killeen, Texas, newspaper fired an employee who complained to the newspaper’s management that they believed fleas had infested the workplace, leaving them with bug bites.
- In June, a federal jury found that a Massachusetts employer retaliated against an employee who reported an on-the-job injury, awarding $650,000 in damages—$600,000 in punitive damages and $50,000 in compensatory damages—in the case. OSHA alleged the employer invited the worker to the construction company’s office, where the worker was taken into Immigration and Customs Enforcement (ICE) custody.
- Last November, OSHA ordered a Houston mobile crane rental company to pay a former employee nearly $24,000 in back wages, interest, and damages after firing the worker, who reported fatigue and refused to drive beyond Federal Motor Carrier Safety Administration (FMCSA) limits, in June 2020.
While OSHA can order reinstatement and compensation, jury awards in federal suits can be substantial. In 2019, a Pennsylvania manufacturer was ordered to pay $1,047,399 in lost wages and punitive damages to two former employees who were fired in retaliation for cooperating with federal officials investigating a workplace amputation.
Firing and laying off whistleblowers qualify as retaliation, as does reporting an employee to the police or immigration authorities. Other forms of retaliation include demotion; denying employee benefits, overtime, or promotion; intimidation or harassment; failing to hire or rehire an employee; making threats; reassignment to a less desirable position; reducing pay or hours; isolating, ostracizing, mocking, or falsely accusing an employee of poor performance; blacklisting; and making working conditions intolerable to the point that an employee quits.
Concerns about retaliation arose during the first year of the COVID-19 pandemic. In March of this year, OSHA filed suit against an Amsterdam, New York, ophthalmologist for firing an employee who raised concerns about the practice’s failure to implement state-mandated protocols protecting employees from COVID-19 and filed a complaint with the New York State Department of Health. OSHA’s investigation found that the employer fired the employee the same day the health department contacted the office about the complaint. The employer specifically cited the employee’s contact with state officials as the reason for termination.
Employee rights, OSHA investigations
Employee rights include the right to speak up about a workplace hazard or request an OSHA inspection without fear of retaliation. Beyond its whistleblower protections, the OSH Act’s worker protections include the right to have personal protective or safety equipment made available, receive training, review records of workplace illnesses and injuries, and see the results of workplace hazard assessments.
An OSHA inspector’s pre-investigation research will include gathering copies of complaints filed with OSHA or other agencies, documents of any enforcement actions like recent workplace inspections, and information on any previous whistleblower complaints. The agency typically will send investigators to conduct on-site interviews and collect documentary evidence surrounding a whistleblower complaint.
Documentation that an investigator might collect could include the following:
- Collective bargaining agreements, employee earnings and benefits statements, and records of employee grievances;
- Employee manuals and Human Resources policy handbooks, as well as position descriptions; and
- Employee performance appraisals, personnel actions, reprimands, warnings, or termination notices.
A company representative or corporate counsel may be present during interviews with management personnel but not during interviews with nonmanagement staff, which are conducted in private.
An agency inspector may attempt to broker a settlement between an employer and a whistleblowing employee. At any point in an investigation, the inspector may explore negotiating a settlement to conclude a whistleblower complaint case.
If OSHA determines that retaliation violates the OSH Act or other federal statutes, the Labor Department may file suit in federal district court to obtain relief. The relief sought in a whistleblower suit may include rehiring or reinstating an employee if the employee has been wrongfully terminated, paying lost wages and benefits, or providing other monetary relief to compensate an employee who has suffered retaliation.
Shoring up your antiretaliation program
An effective antiretaliation program begins with management commitment and accountability. You will need methods for assessing your employees’ willingness to report hazards or safety and health concerns and measuring your actual record of preventing retaliation. You also may want to designate an executive or a manager responsible for handling reports of hazards, compliance concerns, and retaliation complaints.
You also will need systems for listening to and resolving employees’ safety and compliance concerns and reports of retaliation.
You need to establish procedures—perhaps including anonymous or confidential channels—for employees to report health, safety, and compliance concerns. Your managers and supervisors need to be coached on how to respond constructively when receiving employees’ reports of compliance, health, and safety concerns.
Early dispute resolution may be appropriate, especially if adverse actions like termination or demotion are considered or significant disputes arise about an employee’s disclosures.
You need to fairly and transparently evaluate concerns and offer a timely response, ensuring that employees’ concerns are fairly and effectively resolved, if necessary.
Even if an employee’s concerns are unwarranted or are raised in an unpleasant matter, you need to guarantee that employee rights under the OSH Act and other federal statutes are protected.
Employees must file a whistleblower complaint within 30 days of the alleged retaliation. You should inform employees that they may file a retaliation complaint with OSHA and that any internal investigation or early dispute resolution proceeding will not postpone the deadline for filing a whistleblower complaint with OSHA or another government agency.
In some instances, you may want to retain an independent investigator to review employees’ concerns promptly, thoroughly, and transparently. You can benefit from using third-party, independent investigators, especially when the employee allegations involve polarizing or high-stakes issues.
Antiretaliation investigations should also be independent of corporate legal counsel, which is obligated to protect your company’s interests. If you involve corporate counsel in an antiretaliation investigation, you should inform the whistleblower that the investigator represents the company’s interests. The employee must understand that any attorney-client privilege only extends to the employer.
To protect employee rights, you and your managers and supervisors need to:
- Take all reports of retaliation seriously.
- Maintain employee confidentiality, protecting a whistleblowing employee from further retaliation or isolation by coworkers without using employee confidentiality as a means to impeding the employee’s or a government agency’s ability to resolve the whistleblower complaint.
- Be transparent with an employee alleging retaliation about how internal antiretaliation investigations are conducted, including the roles and independence of third-party investigators.
- Investigate claims through an objective complaint review process, ensuring that investigations of alleged retaliation are not tainted by preconceptions about what happened, listening to all sides before making a judgment, and evaluating the circumstances surrounding any employment decision objectively rather than defending against the claim of retaliation.
- Ensure that senior management recognizes the organizational impact, benefits, risks, and policy ramifications of both the reported concern and the need to prevent retaliation against the reporting employee.
- Ensure that your internal antiretaliation program does not discourage employees from reporting retaliation allegations to the government or other appropriate regulatory and oversight agencies.
- Keep the reporting employee and management representatives informed of developments during the course of an antiretaliation investigation.
- Ensure proper, respectful closure of the issue.
You also will benefit from periodically following up with the reporting employee once an antiretaliation investigation has concluded to ensure continued protection from retaliation.
Antiretaliation training
You should develop and implement antiretaliation training for all employees, especially managers and supervisors. Training should cover the following:
- Relevant antiretaliation provisions of federal laws and regulations;
- Employees’ rights and obligations to report potential hazards or violations to OSHA; and
- Elements of your company’s antiretaliation program, including everyone’s roles and responsibilities, how to report concerns internally and externally, options for confidential or anonymous reporting, and how to elevate a concern when supervisors or others do not respond.
Training also should cover what constitutes retaliation—demotion, harassment, isolation, and termination, for example.
Your managers and supervisors need to understand how to respond to a reported workplace concern without resorting to retaliation, appearing to engage in retaliation, or questioning an employee’s motives for reporting a concern. Managers and supervisors also need to be able to separate annoying or inappropriate behavior from the concern itself and should receive training in conflict resolution and problem-solving.
Your antiretaliation program also will benefit from a system of feedback, or a system of audits and monitoring to identify your program’s strengths and weaknesses. Audits and monitoring may reveal whether any program improvements are needed. Audits need to determine whether employees are comfortable reporting their concerns without fear of retaliation and whether managers and supervisors follow the program’s policies.