Managing the Rise of Baseless Whistleblower Retaliation Claims

By Richard D. Alaniz
 
In fiscal 2012, the US Department of Labor's Occupational Safety and Health Administration (OSHA) reported that employees filed almost 2,787 whistleblower retaliation claims. This number has been on the rise over the past few years, up from less than 2,200 in fiscal 2009. OSHA frequently trumpets its successes in these cases; for example, it issued a press release earlier this year after a signalman with Chicago's Metra commuter railroad line was awarded $38,080 for overtime, interest, compensatory damages, and attorney's fees.
 
"An employer does not have the right to retaliate against employees who report safety issues," said Nick Walters, OSHA's regional administrator in Chicago, in a press release. "When employees can't report safety concerns on the job without fear of retaliation, worker safety and, in this case, passenger safety on Metra, becomes a serious concern."
 
What Walters did not say in the press release – what OSHA hardly ever says except in the "Statistics" section of its website – is that this type of finding is the exception, not the rule. In fact, according to OSHA's own statistics, a mere 2 percent of claims were found to merit agency action. 
 
Despite the fact that only 45 of the 2,787 cases fall into the "merit" category (1,665 were dismissed, 565 were withdrawn, and 592 were settled), employers still must spend a great deal of time and money fighting these types of claims before they are withdrawn or dismissed.
 
In order to properly respond to meritless whistleblower retaliation claims, companies need to understand trends and developments in this area. They must also know how to respond if one of their employees claims retaliation.
 
OSHA and Whistleblower Laws
According to the Occupational Safety and Health Act of 1970 (OSH Act), employers must provide a "safe and healthful workplace." Along with the OSH Act, Congress has expanded OSHA's whistleblower authority to protect workers from discrimination under twenty-one different federal laws. 
 
According to OSHA, possible retaliations of employees can include:
  • Applying or issuing a policy which provides for an unfavorable personnel action due to activity protected by a whistleblower law enforced by OSHA
  • Blacklisting
  • Demoting
  • Denying overtime or promotions
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Firing or laying off
  • Intimidation
  • Making threats
  • Reassignment to a less desirable position, including one adversely affecting prospects for promotion
  • Reducing pay or hours
  • Suspension
Once an employee files a retaliation complaint, OSHA will launch an investigation. In order to prove that retaliation took place, OSHA must determine that the employee engaged in protected activity; the employer knew about or suspected the protected activity; the employer took an adverse action; and the protected activity motivated or contributed to the adverse action.
 
If the "evidence supports the employee's allegation," and the parties do not settle, the agency will usually issue an order requiring that the employee be reinstated, back wages paid, benefits restored, and other possible remedies "to make the employee whole." Employers may contest the order. 
 
Under some of the laws OSHA enforces, companies must immediately comply with the reinstatement order. When employees bring cases under the OSH Act, the Asbestos Hazard Emergency Response Act, or the International Safe Container Act, the Secretary of Labor will file a lawsuit in federal district court to obtain relief.
 
Changing Whistleblower Protections
OSHA's whistleblower programs have come under fire recently. In 2012, following reports by the Government Accountability Office that found problems with transparency, accountability, training, internal communications, and audits, OSHA made some dramatic changes. Those included restructuring the whistleblower program and reworking program policy, training, and internal systems. 
 
The Department of Labor has also established the Whistleblower Protection Advisory Committee to advise and make recommendations to the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health on ways to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections. 
 
The committee, which first met in January, is supposed to provide insights from both employers and employees. "Protecting workers who identify wrongdoing is an essential cornerstone of the US Department of Labor's worker protection enforcement efforts," said then-Secretary of Labor Hilda L. Solis last December when committee members were named. "The members of the whistleblower committee, who represent the interests of labor, management, and the public, will utilize their expertise to provide valuable advice and recommendations to help OSHA strengthen and improve our whistleblower protection program."
 
Next Steps
For employers, the rise of meritless whistleblower retaliation claims represents a worrisome trend from a legal, cost, and reputational standpoint. Responding to these types of claims is time consuming and often stressful. Companies that find themselves accused of retaliating against whistleblowers can face devastating PR. 
 
A proactive approach to avoiding these types of claims, and a swift response if they are filed, is the best way to minimize or entirely avoid issues.
 
Review existing whistleblower policies. Companies should consider OSHA's renewed emphasis on whistleblowing a wake-up call. Companies should review their existing whistleblowing policies and update them wherever necessary. 
 
Develop a multidisciplinary approach. Whistleblowing claims touch on a number of different functions, including Legal, HR, and Compliance. Representative from these groups should meet regularly to review whistleblower claims, share information and provide feedback to each other. 
 
Depersonalize the process. When hit with a whistleblower claim, companies should have two separate sets of priorities – delving into the claim itself and ensuring that the employee blowing the whistle does not suffer retaliation.
 
Since whistleblower claims often take on a personal nature for employees and managers, creating a layer between the complainant and direct supervisors may actually help companies respond faster and keep things professional.
 
If companies do not allow anonymous reporting of claims, they should implement such a process immediately. It could be as simple as an old-fashioned suggestion box, where employees can leave notes. For other organizations, setting up an 800 number, allowing employees to send anonymous e-mails, or allowing complaints to be filed on the corporate intranet may encourage more responses.
 
Large companies, or companies in industries that tend to get large numbers of complaints, may want to consider hiring a third party to receive and investigate claims. This can help minimize any real or perceived attempts at retaliation.
 
Companies that specialize in this type of work should also be able to provide invaluable insights into the latest tools, trends, and regulations around whistleblower issues and potential trouble spots for retaliation. 
 
Respond promptly and leave a paper trail. Once the company becomes aware of an employee's identity as a whistleblower, it needs to take immediate action to ensure that the whistleblower is not retaliated against. This means that the whistleblower is not treated any differently than before the claim, or less favorably than coworkers in similar positions. 
 
If an employee needs to be disciplined for violating company rules or procedures that lead to an injury or illness, managers need to tread carefully. Involving HR, the legal department, or outside counsel immediately can help ensure that all disciplinary actions are appropriate and well documented.
 
Documentation becomes even more important when whistleblowers face disciplinary or other actions not related to their claim. For example, a whistleblower may be part of an entire department that has its hours cut or may be docked in pay for chronic tardiness. In these types of situations, the company must be careful to ensure that the whistleblower is not treated differently than anyone else in the identical or similar situation. Supervisors must also be sure to create a record of events that led to the action. A whistleblower who has already filed some type of claim against the company may be more willing to do so again, or may claim retaliation where none exists.
 
Regardless of the situation, managers and supervisors need to carefully document every action they take as well as explain why particular actions are taken. This will help employees understand why they were disciplined. It will also help the company prove its case to OSHA or the courts if the employees attempt to claim they were retaliated against. 
 
Even though a disturbingly large number of whistleblower retaliation claims have no basis, companies can pay a huge price when one is filed. Being proactive and prepared can minimize the fallout.
 
Read additional labor and employment law articles by Richard Alaniz.
 
About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the US Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-schraeder.com.
 

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