OSHA Issues Draft Guidance on Anti-Retaliation Training

By Allen Smith Nov 19, 2015

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 Now the Occupational Safety and Health Administration (OSHA) has issued draft guidance on how to roll out those programs correctly, noted Keating, a member of OSHA’s Whistle-Blower Protection Advisory Committee.

The committee’s recommendations from earlier this year were incorporated into OSHA’s draft guidance, which was issued Nov. 6, 2015, and which highlights the importance of anti-retaliation training.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 The agency’s draft guidance lists five steps to creating an effective anti-retaliation compliance program:

  • Ensure leadership commitment.
  • Foster an anti-retaliation culture. OSHA recommended eliminating all workplace incentives that discourage reporting. “Examples of problematic incentives include rewarding employee work units with prizes for low injury rates or linking supervisory bonuses to lower reported injury rates,” the draft guidance stated.
  • Implement a system for responding to reports of retaliation.
  • Conduct anti-retaliation training.
  • Monitor progress and program improvement.

“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:

  • Relevant laws.
  • Employee rights and activities protected by statute.
  • The elements of the anti-retaliation program, including individuals’ roles and responsibilities, how to report concerns both internally and externally, and how to elevate a concern internally when supervisors or others do not respond.
  • What constitutes retaliation, including common behaviors such as peer pressure, ostracizing, mocking and exclusion from meetings.
  • Skills for defusing conflict, problem-solving and stopping retaliation in a working group.
  • How to respond to a report of a workplace concern without engaging in retaliation.
  • How to separate annoying or inappropriate behavior by the whistle-blower from the concern itself.
  • Consequences for managers who fail to follow anti-retaliation policies and respond to concerns inappropriately.
  • What constitutes notice to an employer that an employee believes there has been retaliation, when employers are required to act, and the legal exposure and penalties employers face for inaction.

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:

  • What constitutes protected activity.
  • What their role is when employees raise concerns.
  • How they should interact with HR and counsel.

Benefits of an Effective Compliance Program

Keating said there are three main benefits to an effective compliance program:

  • The company will get a competitive advantage from “people in the trenches believing everyone is pedaling the bike in unison.”
  • It’s the right thing to do.
  • Potentially, fines will be reduced since the Department of Labor considers companies’ commitment to compliance when determining penalties.

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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