By A. Scott Hecker, Adam R. Young, Patrick D. Joyce, James L. Curtis, and Craig B. Simonsen
Seyfarth Synopsis: On April 14, 2023, we attended a webinar presented by U.S. DOL Solicitor Seema Nanda, DOL Wage and Hour Division Principal Deputy Jessica Looman, DOL Occupational Safety and Health Administration Assistant Secretary Doug Parker, National Labor Relations Board General Counsel Jennifer Abruzzo, and U.S. Equal Employment Opportunity Commission Chair Charlotte Burrows. The webinar addressed 1) what retaliation is and how each agency addresses it, 2) best practices for prevention, 3) best practices to respond to instances of retaliation, and 4) available resources.
Solicitor Nanda explained, despite nuances among the laws and standards enforced by the participating agencies, retaliation generally encompasses an employee’s engaging in protected activity, which results in an adverse action. Adverse actions can include termination, confiscating immigration documents, threats, shift changes, reducing hours or responsibilities, blacklisting, demotion, isolation, and ostracizing – effectively any action dissuading an employee from raising a concern about a possible violation or engaging in other protected activity. Protected activity may involve filing a complaint, planning or joining a lawsuit, complaining to a supervisor, or refusing to work. Solicitor Nanda also represented that the Solicitor’s Office aims to engage with its agencies early in retaliation claims to seek, e.g., temporary restraining orders and to ensure every worker can exercise rights and participate in investigations.
Each participant described the laws they enforce and the circumstances they encounter when working through retaliation claims. Specifically, OSHA’s Doug Parker explained the agency’s whistleblower program covers not only the OSH Act, but also 24 other laws covering product and food safety, fraud and financial issues, and transportation.
Solicitor Nanda labeled addressing retaliation in the workplace as a win-win. Because it is illegal, it is a critical part of employer compliance, and by instituting anti-retaliation programs, employers can help employers avoid increased penalties and bad publicity. Addressing retaliation can also improve the work environment, as employers who take retaliation prevention and response seriously can identify shortcomings and encourage employee engagement by reducing or eliminating fear of retribution for reporting issues. The government takes retaliation so seriously because without employee participation in the enforcement process, agencies cannot effectively execute their missions. Indeed, these agencies’ view retaliation as:
one of the greatest threats to workers being able to exercise the rights guaranteed to them under the law, and to the ability of agencies to protect the exercise of those rights and ensure compliance with our laws. As a result, preventing and addressing retaliation is a top priority across agencies
The presenters next shared recommendations for employers to implement best practices concerning prevention and response to retaliation. They represented the recommendations are general, not mandatory, and do not interpret or create legal obligations. But many derived from the work of the Whistleblower Protection Advisory Committee.
Assistant Secretary Parker kicked off a discussion concerning developing anti-retaliation programs and policies, identifying components of effective protocols to both prevent and respond to retaliation.
To prevent retaliation, employers should:
- Provide training in plain, comprehensible language that employees can understand on: relevant laws and regulations; types of retaliatory acts; employees’ rights and obligations; and elements of the employer’s retaliation program. Managers and supervisors should understand – and be provided examples of – what constitutes retaliation; how to deal with reports of retaliation and harassment; strengthen skills regarding de-escalation, conflict resolution, effective communication, and problem solving; and the consequences of retaliation.
- Ensure accountability by having management take a leadership role in preventing and addressing retaliation. Managers should set the tone, lead by example, hold themselves accountable, and empower workers.
- Develop a complaint process that provides avenues for employees to raise concerns. The process should provide for transparent evaluation, as well as fair, effective, and timely resolution of complaints. Assistant Secretary Parker suggested employers should want robust anti-retaliation prevention and response programs in place because these policies are closely intertwined with substantive compliance with applicable laws and regulations. Put another way, employees’ sharing concerns may facilitate employers’ ability to address potential safety and health shortcomings in their workplaces.
- Maintain program oversight through ongoing monitoring of, e.g., the efficacy of anti-retaliation training, trends in complaints and subsequent resolutions, compliance with anti-retaliation policies, and numbers of worker reports to evaluate whether employees are coming forward with concerns. Internal audits can be beneficial as well.
- Evaluate policy and culture, including transparency surrounding working conditions and pay; potential chilling effects of safety incentive programs and employee monitoring; communications regarding the value of employees’ raising concerns; and no retaliation for employees who report alleged violations to the government.
To address incidents of retaliation, employers should
- Implement a system, which workers trust, to receive and address complaints.
- Authorize appropriate personnel to respond to complaints, including providing remedies to employees.
- Establish independent reporting channels and ensure the confidentiality of reports to the extent practical, but do not impede government investigations or prevent employees from seeking other support or assistance
- Investigate reports of retaliation promptly and thoroughly, ensuring reports are taken seriously and investigations are not tainted by preconceptions
- Make sure the investigatory process is clear and is explained to the reporting employee. Both the employee and management should be kept informed throughout investigation.
- Close the investigation respectfully and properly
- Follow up, as needed, to maintain continued anti-retaliation protection for reporting employees.
When providing remedies to employees who report workplace concerns, employers should consider how to make employees whole, e.g., through reinstatement, by providing lost wages or other damages, and through disciplining supervisors who failed to follow retaliation policies.
All the participating government entities represented additional resources are available on their respective websites. OSHA’s Assistant Secretary Parker referenced not only www.whisteblowers.gov, but also the agency’s materials on health and safety management programs and its safe and sound campaigns.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.