Achieving Greater Whistleblower Protection: New OSHA Best Practices for Whistleblower Compliance Programs

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This week, the Whistleblower Protection Advisory Committee, where I serve as a management representative, issued draft guidelines to help better increase whistleblower rights and increase whistleblower protection. On November 17, Carrie Penman and I will be talking more about these guidelines and their implications for organizations during the NAVEX Global Ethics & Compliance Virtual Conference.

In the meantime, I wanted to share the Choate Alert to provide additional insight on the new guidelines, as well as encourage you to share your thoughts during the public comment phase, which will be open until January 2016.

From the Choate Alert about the new guidelines, "New OSHA Best Practices for Whistleblower Compliance Programs":

  • What you need to know: OSHA recently released for public comment a set of draft guidelines designed to help organizations design effective compliance programs that protect whistleblower rights and, by doing so, make it safe and easy for employees to raise concerns before those concerns boil over into damaging whistleblower lawsuits. The draft guidelines will remain open for comment until January 2016. Once the comment period ends, some of the guidelines may become new, formal OSHA standards for whistleblower protection.
  • What you need to do: Employers should review the draft guidelines, consider submitting public comments (here), and contemplate taking steps now to bring their existing compliance protocols into alignment with the proposed guidelines. Acting now will help employers stay ahead of the curve and avoid liability in the years to come.

The Five Main Points of the New OSHA Guidelines:

The guidelines—which stem from the work of the Whistleblower Protection Advisory Committee— emphasize five key elements of effective whistleblower protection and anti-retaliation systems:

  1. Leadership commitment. Effective whistleblower protection starts from the top. Leadership should not only set the right tone, but should also take the lead in implementing a whistleblower protection system that trains staff, identifies retaliation, conducts independent investigations, and, as necessary, takes corrective actions.
  2. Foster a “Speak Up” Culture. The best way to avoid retaliation is to take a preventive approach by making clear that employees are allowed to raise issues of concern. Therefore, employers should foster a “speak up” culture which encourages reporting, provides for fair evaluation, and ensures the fair resolution of concerns.
  3. 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, if necessary. The system should be open to all employees.
  4. Anti-Retaliation Training. Employers should provide training to senior leadership and managers regarding what constitutes protected activity and what is retaliation. Everyone should understand their role when an issue is raised. All employees should be made aware of what constitutes retaliation, legal protections available to them, and how to raise a concern.
  5. Smarter Progress Monitoring & Independent Auditing. Accountability systems which reward management for low reported numbers of claims (in the safety area, for example) can prevent issues from being addressed which could help organizational integrity, performance, or safety.

    Incentives should instead reward behavior which supports employees’ right to come forward with concerns. Additionally, employers should consider hiring independent evaluators or auditors to periodically review their anti-retaliation systems. Specific audits for employees’ willingness to report issues and about fears for retaliation are needed to really gauge whether or not there are lingering issues or fears of retaliation.

Taken together, these guidelines articulate the key elements of a modern, effective system which can protect whistleblower rights and reduce the incidence of illegal retaliation. Employers are encouraged to review internal reporting policies and consult with employment counsel regarding these developments.


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