(June 2, 2015) A federal advisory group recommends that companies do more to protect company whistleblowers from retaliation. The recommendations by a U.S. Occupational Safety & Health Administration advisory group and reviewed by The Wall Street Journal, say that despite increased enforcement from regulators, "Retaliation against employees who report issues is all too common." The 12-page recommendations describe how to create a "speak up" culture that allows employees to voice concerns, while protecting companies from retaliation claims.
"Companies need clear, granular guidelines and that's what we've created," Gregory Keating, a member of the committee and a whistleblower claim specialist at Littler Mendelson, P.C. said.
The advisory group was made up of union representatives, corporate attorneys and government representatives, who unanimously approved the recommendations. OSHA expects to publish a version of the recommendations in the next six months, an agency spokeswoman said.
U.S. regulators have been expanding their outreach to whistleblowers and ramping up enforcement against companies that punish employees who speak out. OSHA is tasked with fining companies who are found to have punished employees who raise workplace safety issues or shine a light on accounting fraud.
The guidelines urge companies to better train managers on the many forms that retaliation can take, including "less overt behaviors such as peer pressure, ostracizing, mocking, and exclusion from meetings."
Keating said that while some form of whistleblower response training is common in large companies, often those programs focus on setting up call centers to field anonymous complaints.
"The reality less than three percent of complaints of fraud come through a hotline," he said. "Over 75 percent of complaints come through their supervisor. But most employers have not realized that."
As a result, managers often aren't trained to recognize when employees raise issues covered by whistleblower statutes and can sometimes be dismissive. After seeing their issues waived off, whistleblowers sometimes see every negative workplace experience - from missed promotions, to critical feedback - as evidence of retaliation, Keating said.
"Every little thing that happens is because he complained. That dynamic can lead to a costly whistleblower retaliation suit," Keating said.
For that reason, the guidelines recommend that managers receive training in how to investigate complaints "promptly, thoroughly and with transparency, including responding to the employee who brought forward the initial concern." Managers should also understand that "that false narratives to discredit the employee and cover-ups are common."
Keating said that, in the short-term, companies implementing these guidelines may find the number of complaints surge, but that initial burst often tapers off. "It may be choppier waters than you are used to, but you are going to hear about things you'll want to fix anyway."