Recommended Practices for Anti-Retaliation Programs
By: Kelly D. Ogle, BSDH, MIOP, CMPM, CHOP®
Director of OSHA and HIPAA Services
OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of 22 federal statutes protecting employees who raise or report concerns about hazards or violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.
An employer must not retaliate against an employee for engaging in activities that are protected under these laws. Protected activities may include filing a report about a possible violation of the law with OSHA or other government agencies; reporting a concern about a possible violation of the law to the employer; reporting a workplace injury, illness, or hazard; cooperating with law enforcement; refusing to conduct tasks that would violate the law; or engaging in any other type of statutorily protected activity.
Retaliation against employees who raise or report concerns or otherwise exercise their rights under these laws is not only illegal, but it is also bad for workers and bad for business. A proactive anti-retaliation program is designed to (1) receive and respond appropriately to employees’ compliance concerns (i.e., concerns about hazards or potential employer violations of one of the 22 laws) and (2) prevent and address retaliation against employees who raise or report concerns. Without an effective program, problems in the workplace may go unreported because workers fear retaliation for reporting concerns or feel frustration over the lack of effective resolution of their concerns.
An anti-retaliation program that enables all members of the workforce (including permanent employees, contractors and temporary workers) to voice their concerns without fear of retaliation can help employers learn of problems and appropriately address them before they become more difficult to correct. A program based on this proactive approach not only helps employers ensure that they are following federal laws, but also helps create a positive workplace culture that prevents unlawful retaliation against employees. Furthermore, a successful anti-retaliation program improves employee satisfaction and engagement and helps protect workers and members of the public from the harm of violations of federal laws and regulations.
Retaliation occurs when an employer (through a manager, supervisor, or administrator) takes an adverse action against an employee because the employee engaged in protected activity, such as reporting a suspected violation of law or raising a concern about a workplace condition or activity that could have an adverse impact on the safety, health, or well-being of the reporting employee, other workers, or the public. Retaliation also occurs when an employer takes an adverse action because an employee reported an injury or to dissuade an employee from reporting an injury. An adverse action is an action that could dissuade or intimidate a reasonable worker from raising a concern about a workplace condition or activity. Retaliation against an employee is not only harmful to the employee who experienced the adverse action, it can also have a negative impact on overall employee morale because of the chilling effect that retaliation can have on other employees’ willingness to report concerns. Because adverse action can be subtle, it may not always be easy to spot.
Examples of adverse action include, but are not limited to:
- Firing or laying off
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Blacklisting (e.g., notifying other potential employers that an applicant should not be hired or refusing to consider applicants for employment who have reported concerns to previous employers)
- Reducing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance.
There are five key elements to creating an effective anti-retaliation program:
- Management leadership, commitment, and accountability
- System for listening to and resolving employees’ safety and compliance concerns
- System for receiving and responding to reports of retaliation
- Anti-retaliation training for employees and managers
- Program oversight
MANAGEMENT COMMITMENT AND ACCOUNTABIILITY
- Implement a system for reporting concerns, including maintaining confidentiality of employees who do voice concerns.
- Create and enforce anti-retaliation policies and practices.
- Require training for management.
- Create a culture of conduct and ethics that discourage retaliation.
- Discipline managers who do retaliate or who violate employee confidentiality.
RECEIVING AND RESOLVING EMPLOYEE CONCERNS
- Establish channels for reporting concerns such as email boxes, websites, or an ombudsman, and tell employees how to use these channels.
- Ensure confidentiality of employees who express concerns, either to management or to the government.
RECEIVING AND RESOLVING EMPLOYEE REPORTS OF RETALIATION
- Remove any barriers for reporting, real or perceived.
- Listen to all concerns, regardless of how trivial they may sound.
- Take notes of any verbal communications to show interest.
- Follow up as soon as possible, with respect and confidentiality.
TRAINING FOR MANAGERS AND EMPLOYEES
- Explain the employer’s commitment to compliance with all laws.
- Describe the employer’s policies and how an individual may obtain a copy.
- Emphasize employees’ rights and obligations to express concerns without retaliation.
- Explain the types of behaviors or actions that may constitute retaliation.
- Teach techniques for diffusing conflict, problem solving and stopping retaliation.
- Review documentation of concerns and how they were handled.
- Interview employees for feedback on if or how well the program is working.
- Adjust policies or practices that are not working, including implementation of discipline where indicated.