In fiscal 2012, OSHA reported that employees filed almost 2,787 whistleblower retaliation claims. This number has risen 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 in overtime, interest, compensatory damages, and attorney’s fees.
What the press release did not say and 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% of claims were found to merit agency action.
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 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. Working closely with outside counsel, companies should review their existing whistleblowing policies and update them.
Develop a multidisciplinary approach
Whistleblowing claims touch on a number of different functions, including legal, HR, and compliance. Representatives 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 never gets any ammunition to follow up with charges of retaliation.
Since whistleblower claims often take on a personal nature for employees and managers, creating a layer between the complainant and direct supervisors may help companies respond faster and keep things professional.
If companies don’t allow anonymous reporting of claims, they should implement such a process immediately. Large companies may also want to consider hiring a third party to receive and investigate claims.
Respond promptly and leave a paper trail
Once the company becomes aware of an employee’s identity as a whistleblower, it must take immediate action to ensure 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.
Regardless of the situation, managers and supervisors must carefully document every action they take, as well as explaining 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 employee attempts to claim s/he was retaliated against.
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.
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.
Richard D. Alaniz is senior partner at Alaniz Schraeder Linker Farris Mayes, L.L.P., a national labor and employment firm based in Houston. Email Alaniz at firstname.lastname@example.org.
For more on this topic, read Prepare for Whistleblower Probes in the April 2013 issue of Concrete Construction.