The U.S. Department of Labor’s FY 2014-2018 Strategic Plan identified OSHA whistleblower protection as one of its key strategic performance goals. The heightened attention comes in response to dramatic increases in safety-related whistleblower/retaliation claims over the past few years. As an initial effort to make this a priority, OSHA developed a stand-alone Whistleblower Protection Program to comprehensively enforce alleged whistleblower/retaliation claims. It should be noted that OSHA contains numerous retaliation protections across a variety of industries, including those involving motor vehicle safety, consumer products, and commercial motor carriers. As part of the Whistleblower Program, OSHA has increased staff, strengthened coordination with other agencies, increased training to field staff, and developed a Whistleblower Protection Advisory Committee (WPAC) to provide ongoing improvements to OSHA’s Whistleblower Program. OSHA’s activities (and press releases) in 2015, alone, show that OSHA is deeply focused on remedying safety-related whistleblower/retaliation claims. Importantly, OSHA’s recent efforts establish that OSHA expects employers, big and small, to develop an internal whistleblower protection program.
In 2015, the WPAC drafted a “Best Practices” guide for employers on how to protect whistleblowers and prevent retaliation. The draft guide can be located at: http://www.whistleblowers.gov/wpac/WPAC_BPR_42115.pdf. In November 2015, OSHA distributed the draft document and actively sought comments from the public to help it finalize the guidance. OSHA received and is reviewing approximately 60 comments to its draft guidance. A final “Best Practices” guide will likely be released in the near future. While there might be minor changes based on public feedback, employers should anticipate that the final guidance will maintain OSHA’s expectation that employer’s implement an internal whistleblower protection program. The draft guide identifies the following “key elements” for an effective whistleblower protection and anti-retaliation program:
- Leadership commitment;
- A true “speak up” organizational culture that is the basis of a prevention-oriented program that encourages raising and fair resolution of issues;
- Independent and protected resolution systems for allegations of retaliation;
- Specific training to teach workers their rights and about available internal and external protection programs, and for managers to learn these along with related skills, behaviors and obligations to act;
- Monitoring and measurements that don’t contribute to suppression of reporting and which measure the efforts and effectiveness of inputs to a speak-up and non-retaliation culture; and
- Independent auditing to determine if the program is actually working.
As a further sign that OSHA expects employers to proactively protect whistleblowers and prevent retaliation, last year OSHA also updated its Whistleblower Investigations Manual. The updates were to (internally) offer clarity as to how to structure remedies and settlements for those handling a whistleblower claim under the Act. The revised manual states that, in some cases, OSHA may issue a preliminary reinstatement and employers must make a bona fide job offer upon receipt of such findings. This is a bold requirement, but it will likely be used with greater frequency as OSHA continues to step-up enforcement of retaliation claims. In addition, the manual now contains a section explaining that emotional distress/mental anguish and pain and suffering can be part of compensatory damages awarded under the OSHA whistleblower provisions. Of particular concern is that OSHA expressly states that it may rely solely on a complainant’s own statement to prove objective manifestations of distress and statements by healthcare professionals are not required.
The whistleblower manual now includes detailed guidance as to when punitive damages should be awarded in whistleblower cases. OSHA will likely consider punitive damages in cases when a management official knew his/her action violated the whistleblower statute or had reason to believe the action was unlawful but did not act to stop or prevent the conduct. OSHA will focus on statements made by company officials, the amount of whistleblower training provided to staff, prior complaints about retaliation, and the company’s policies and manuals. OSHA expressly acknowledges that punitive damages are likely not appropriate if the employer has a good faith defense, such as an effectively-enforced policy against retaliation. The fact OSHA is simultaneously publishing guidance for employers on implementing an anti-retaliation program and policy, leaves employers with little to no excuse for failing to have such a policy in place. OSHA is giving fair warning to employers that disregarding its whistleblower guidance increases exposure to punitive damages findings.
OSHA also announced that it continues to recognize the value in settling matters, including whistleblower claims, as opposed to litigating the claims. However, OSHA investigators are required to adhere to specific requirements when discussing settlement and employers should expect OSHA to seek 100% relief in order to settle (although full relief is not an absolute requirement for settlement). An employer that has not taken any good faith steps to protect whistleblowers or prevent retaliation will face an uphill battle trying to negotiate a settlement with OSHA. If OSHA has general concerns that employees are not protected, informal resolution is unlikely.
In sum, OSHA will continue to target enforcement of whistleblower protections set forth in the Act. Based on recent guidance issued by OSHA, it is clear employers can provide substantial protection from damages, including punitive damages, by updating policies and handbooks to strictly prohibit retaliation. In addition, all employers should provide regular training to employees (especially supervisors) about the rights of whistleblowers and the company’s zero tolerance policy on retaliation. These simple steps will go a long way in avoiding liability and damages for whistleblower claims, which are projected to continue to rise.
