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The Volkswagen (VW) emissions scandal illustrates the need for whistle-blower anti-retaliation programs, according to Greg Keating, an attorney with Choate, Hall & Stewart in Boston. Now the Occupational Safety and Health Administration (OSHA) has issued draft guidance on how to roll out those programs correctly, noted Keating, a member of OSHA’s Whistle-Blower Protection Advisory Committee.
The committee’s recommendations from earlier this year were incorporated into OSHA’s draft guidance, which was issued Nov. 6, 2015, and which highlights the importance of anti-retaliation training.
In September, the Environmental Protection Agency (EPA) issued a notice of violation of the Clean Air Act to VW, alleging that VW and Audi diesel cars from 2009 to 2015 included software that circumvented EPA emissions standards for air pollutants. VW has guaranteed its employees protection from termination and damages over the next few weeks for those who step forward and explain exactly what happened, Keating observed.
If VW had in place a more effective whistle-blower anti-retaliation compliance program, “they could have nipped this problem in the bud,” he remarked.
Training: Essential Part of a Compliance Program
OSHA enforces the whistle-blower protection provisions of the Occupational Safety and Health Act. The agency’s draft guidance lists five steps to creating an effective anti-retaliation compliance program:
“There needs to be training around this,” Keating said, comparing the need for training on anti-retaliation programs now to the “frenzy” of training on sexual harassment in the 1990s.
The guidance said that anti-retaliation training should include, at a minimum, coverage of:
Many companies rely on codes of conduct and anonymous complaint hotlines, but the days of depending on such hotlines “are dead,” Keating said. He remarked that employees with concerns don’t use the hotlines, but instead go to their managers, who need to be trained on:
Benefits of an Effective Compliance Program
Keating said there are three main benefits to an effective compliance program:
Comments on the draft guidance are due Jan. 19, 2016, and should be submitted to http://www.regulations.gov, using the docket number OSHA-2015-0025.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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