2016 Trends #7: Renewed Focus on Boosting Whistleblower Rights and Squashing Retaliation

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To help prepare compliance professionals for the year ahead, we’ve talked with industry experts, our colleagues at NAVEX Global, and ethics and compliance professionals from our more than 12,500 client organizations to gather insights on the top issues and trends that will impact compliance programs in 2016. We’ll share each of the trends here over the next few weeks.


The U.S. Occupational Safety and Health Administration (OSHA) recently released draft guidelines designed to help organizations design effective programs to protect whistleblower rights. After a comment period, some or all of the guidelines may become formal OSHA standards for whistleblower protection.

The guidelines begin with familiar themes to ethics and compliance officers: the importance of leadership’s commitment to E&C and the need to build and maintain a “speak up culture.” The guidelines go on to discuss three additional recommendations:

  • Implement a retaliation response system. An effective retaliation response system should include an independent complaint review process and an independent reporting line that can reach the employer’s board or oversight body.
  • Conduct anti-retaliation compliance training.
    Employers should provide training to senior leadership and managers on what constitutes protected activity. Many individuals are unsure what constitutes retaliation. Formal training allows everyone to understand their role when an issue is raised.
  • Monitoring and independent auditing.
    Accountability systems that reward management for low reported numbers of claims (in the safety area, for example) can prevent issues which could help organizational integrity, performance or safety from being addressed. Incentives should instead reward behavior which supports employees’ right to come forward with concerns.

In September 2015, in a two-to-one decision, (Berman v. Neo@Ogilvy LLC), a U.S. federal court agreed with the U.S. Securities and Exchange Commission’s (SEC) interpretation of “whistleblower.” The court decided an individual’s internal company complaint was sufficient for the individual to be covered by whistleblower protection under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Other courts had ruled that in order to be entitled to Dodd-Frank protection the complaint needed to be filed with the SEC. The case may be appealed to the U.S. Supreme Court. If the ruling stands, it would signal a dramatic widening of whistleblower protections.

Key Steps for Organizations to Take

1. Review and comment on the new OSHA guidelines.

Ethics and compliance officers should review the draft OSHA guidelines and consider submitting public comments. Organizations should also prepare for the likelihood that the guidelines will be finalized in the coming year. Acting now will help you stay ahead of the curve and avoid liability in the future.

2. Implement a retaliation response system.

Such a system should include the following elements:

  • A publicized system with multiple avenues for reporting retaliation, including the helpline. Too often, organizations do not make it clear that the helpline is not just for initial reports but is also a resource to report subsequent retaliation.
  • In addition to the employee ethics hotline, consider creating a separate channel for those who need to report retaliation pertaining to high-stakes issues, such as those implicating senior leadership.
  • To help build trust in the process, include information in your communications and training that explains how investigations are conducted. Take steps to ensure investigations not only are independent, but are also perceived by employees as being truly independent.
  • An independent process should be created to review any proposed discipline to a whistleblower to ensure the discipline is warranted and cannot be perceived as retaliatory. After a formal complaint of retaliation has been filed, an objective, independent assessment should be conducted.
  • Consider appointing someone as a resource for employees who have raised a concern and who may be more susceptible to retaliation. This resource would be available to support the employee during the investigation process and after.​

​​3. Develop anti-retaliation training.

This training should be targeted to all managers and others who have a role to play in the incident reporting and investigation process. The training should cover these topics:

  • What constitutes retaliation—including common but less overt behaviors such as peer pressure, ostracizing, mocking and exclusion from meetings. Consider adding this component of the training to communications and training for all employees.;
  • An update on relevant laws, rights of employees, risks and the consequences of not responding appropriately.
  • How to respond to a report of an issue without engaging in or appearing to engage in retaliation.
  • Skills for defusing, problem solving and stopping retaliation in a work group.
  • Information on the organization’s anti-retaliation system.

Laws change: so should your policies. To get assistance updating or redrafting a new anti-retaliation policy, get in touch with an ethics and compliance expert today.


What do you have to say? Share your thoughts in the comments below or join a discussion group on Compliance Next.


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