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OSHA Updates Whistleblower Protection Guidelines, Invites Comment

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By Jonathan R. Tung, Esq. on November 18, 2015 5:59 AM

OSHA recently released a set of draft guidelines to help organizations currently setting up compliance regimes. The guidelines concurrently protect whistleblowers' rights. By implementing some of the key suggestions in the guidelines, employees should be compelled to discuss issues with employers before anything blows up into a full blown lawsuit.

Employers who have anything to say about the guidelines should consider submitting comments, which will be made public.

Grand Takeaways

The guidelines are lengthy and the main points are written in predictably broad language. Nevertheless, the Whistleblower Protection Advisory Committee has taken care to emphasize five main points that would boost whistleblower protection and dampen retaliation against employees who speak up. The language below is taken from JDSupra:

  1. Leadership Commitment: Effective whistleblower protection comes from the top. Leadership should take the first steps in setting the right tone and be the first to actively implement a program to train staff, investigate issues, and identify improper retaliation.
  2. Foster a "Speak-Up" Culture: The guidelines encourage employers to foster a culture of being able to open one's mouth without fear of retaliation.
  3. Implement a Retaliation Response System: A retaliation response system should include an independent complaint review process that is outside of the employer's board to minimize conflicts of interest.
  4. Training in Anti-Retaliation: Employers should provide leadership training in anti-retaliation and employees should be made aware of their rights under their contracts.
  5. Rewarding Results: Accountability systems that reward management for low-reported incident rates can boost safety and morale.

Healthy Skepticism

If some readers feel that the above language could have been distilled in three points or less, keep in mind that the original memorandum's points were even more wordy and vague. Compliance guidelines are, almost by necessity, imprecise such as to encourage public commentary about its lacking in specificity.

Additionally, getting leaders to implement whistleblower paradigms with a smile is a tough sell. In-house attorneys will have the unenviable job of helping their company navigate the very means by which an employee could take down the company culture. And these days, In-house lawyers no longer have a tradition of keeping personal lawsuits at bay.

Equally tough is inveigling employees into relying on a system designed to rat out company culture at the potential expense of future job security. OSHA can propose anti-retaliation guidelines, but the reality of retaliation seems squarely at odds with the idyllic one that OSHA seems determined to push -- and they know it.

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