Learn more about the Whistleblower Protection Programs from the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA). Embodied in 22 federal laws, these programs protect employees from retaliation for reporting workplace violations such as injuries, safety concerns, and other protected activities. Each law requires that employees file a complaint with the federal government within a certain number of days of retaliation by an employer for reporting a workplace violation.
Additionally, Section 11(c) of the Occupational Safety and Health Act prohibits employer discrimination when employees exercise their rights to report suspected improper or illegal government activities that happen in the workplace. These activities may include fraud, waste, abuse, unnecessary government spending, and unsafe or unhealthy employer practices.
Workplace retaliations can include the following adverse actions taken against employees:
- A transfer or reassignment in a way that affects chances for promotion
- Denial of a raise, benefits, overtime, or a promotion
- Being demoted, laid off, or fired
- Intimidation, threats, harassment, or disciplinary action
- A reduction in hours or pay or failure to hire or rehire
- Being blacklisted
Under the OSHA laws, employers must ensure a safe workplace for employees, as well as inform employees about OSHA safety and health standards that apply to their workplace. Specific responsibilities include, but are not limited to:
- Posting the OSHA poster describing employees' rights and responsibilities
- Keeping records of work-related injuries and illnesses
- Establishing operating procedures
- Instructing employees to follow safety and health requirements
In essence, there are two ways for employers to avoid whistleblower lawsuits. First, do not get involved in illegal or improper conduct that could trigger whistleblower action. Second, do not mistreat the whistleblower if a complaint is filed.
To help limit employer liability for whistleblower retaliation claims, the following steps are recommended:
- Establish an ethics policy. The policy should state that the employer will comply with all legal obligations. A good ethics policy includes a complaint reporting procedure and encourages employees to report misconduct. The policy should also assure employees that their complaints will be properly investigated and that they will not be subject to retaliation for having complained in good faith.
- Provide training on ethics and applicable laws. Employers should provide employee training on the ethics policy and any industry-related statutes or regulations. Managers should have additional training around complying with the relevant laws and recognizing and responding appropriately to whistleblower activity.
- Maintain documentation. Employers should accurately and adequately document all employee performance and conduct problems that could be a basis for disciplining or discharging an employee.
Employers who find themselves faced with a whistleblower complaint may find the following actions helpful:
- Recognize complaints. Whistleblower complaints could be obvious or subtle. Proper training can increase sensitivity about complaints among supervisors and managers and help separate frivolous complaints from actual whistleblower activity.
- Investigate complaints and document the investigation. Make the investigation prompt and thorough and keep a record of it.
- Remediate the complaint. After the investigation, an employer should assess the allegations and determine what, if anything, to do in response.
- Debrief the complainant. Be sure to close the loop with the complaining employee by sharing appropriate information about the investigation.
- Have a game plan. After the allegations have been addressed, the employer should have a plan for avoiding future complaints. This will help demonstrate the employer’s commitment to corporate ethics.
- Follow the policy. Failing to follow the company’s existing corporate policy during a pending investigation can be a problem in whistleblower litigation.
- Cooperate with government investigations. Employers should fully cooperate and provide all relevant documentation and information to support the reasons for taking adverse action against an employee.
Efforts are ongoing to strengthen safeguards for employees against employer retaliation through whistleblower legislation.
Last Updated: March 23, 2021