On January 13, 2017, OSHA published the Recommended Practices for Anti-Retaliation Programs. OSHA’s guidance provides examples and suggestions of steps companies can take to implement an effective anti-retaliation program. However, it does not interpret whistleblower statutes or create legal obligations.
OSHA identifies five elements key to effective anti-retaliation programs:
- Management leadership, commitment and accountability;
- System for listening to and resolving employees’ safety and compliance concerns;
- System for receiving and responding to reports of retaliation;
- Anti-retaliation training for employees and managers; and
- Program oversight.
According to OSHA, companies should take steps to ensure that systems for reporting concerns and retaliation are implemented and enforced. These systems should also evaluate and track employees’ willingness to report concerns. OSHA recommends that companies establish multiple complaint reporting channels, such as confidential and anonymous helplines, email boxes or dedicated websites, and institute open door policies. Reporting channels should protect the confidentiality and anonymity of employees who report concerns. In addition, once a complaint is received, an effective anti-retaliation program should strive for a prompt and fair resolution. OSHA suggests the use of an independent neutral investigator to review, respond to, promptly investigate and resolve complaints whenever possible.
OSHA also recommends tailoring employee training and company policies to address whistleblower laws and regulations as part of an effective anti-retaliation program. Trainings should include information on employee rights under whistleblower laws and regulations, an explanation of the company’s anti-retaliation program and an explanation of what constitutes retaliation. Further, OSHA’s guidance explains that once a program is in place, employers should maintain oversight of the program performance and improve or modify as needed based on regular performance monitoring and audits.