The U.S. Occupational Safety and Health Administration’s recommended practices to prevent retaliation against employees reporting workplace safety concerns offers some helpful guidance to employers, but does not have the weight of mandatory regulations and has a major flaw that seriously undermines its effectiveness, according to one critic.

The document, published on Jan. 17, outlines five key elements of an effective anti-retaliation program: management leadership, commitment and accountability; a system for listening to and resolving employees’ safety and compliance concerns; a system for receiving and responding to reports of retaliation; anti-retaliation training for employees and managers; and program oversight.

The recommendations are intended to apply to all public- and private-sector employers covered by the 22 whistleblower statutes that OSHA enforces, but employers may adjust the recommendations based on factors such as the number of employees, the makeup of the workforce and the type of work performed. 

“From my perspective, it appears that OSHA has really laid a detailed framework for employers to put together the anti-retaliation programs that they need to have under the anti-discrimination rule that came out late last year,” said Angela O’Rourke, San Francisco-based senior attorney with Squire Patton Boggs. “They have an obligation to notify employees about their right to identify concerns they have about workplace compliance, safety concerns, environmental concerns without fear of retaliation and punishment from their employers.”

For example, OSHA’s guidance specifies that employer policies must not discourage employees from reporting concerns to a government agency, delay employee reports to government or require employees to report concerns to the employer first. This should prompt employers to review their current employment or confidentiality agreements to ensure that they do not prohibit or discourage employees from reporting safety concerns to government agencies, she said.

The focus on training and providing examples of what anti-retaliation training should entail provides helpful guidance to employers, including advising that this training occurs in languages their employees speak and can understand, said Katherine Tracy, policy analyst with the Center for Progressive Reform in Washington.

“OSHA oversees so many different whistleblower statutes that it can be a lot essentially as an employee to understand what your rights are under those statutes and it could depend very specifically on the issue that you raise to your employer or the agency,” she said. “I like that there was some effort on OSHA’s part to encourage employers to work with their employees to help them understand what their rights are under those various different laws and make sure that they’re protected.”

“The draft also talks about changing the culture inside the workplace, instead of being on the defensive when someone raises a concern, helping to address that concern and taking it as a legitimate concern and not someone trying to annoy their employer,” Ms. Tracy added.

But Stephen Kohn, executive director of National Whistleblower Center and a partner with Kohn, Kohn & Colapinto L.L.P. in Washington, criticized the guidance because it does not mandate that retaliation investigations be conducted by a party other than a corporation’s general counsel, which means a person responsible for and obligated to protect the corporation’s interest could be the one leading an inquiry into possible retaliation that could negatively affect the company and could lead to an employee’s legitimate retaliation complaint not being vindicated.

“It goes to this whole issue of compliance and internal reporting,” he said. “Companies use in-house counsel to cover up misconduct and they can do that through an abuse of the attorney-client privilege. I call it an abuse because in our view that should be a business function and should not be covered under attorney-client privilege.”

“If the program is run by the company lawyers, it can be used as a tool of retaliation,” Mr. Kohn continued. “Merely having an anti-retaliation program does not protect employees and in fact can be used to hurt employees.”

There are other issues with the guidance, namely that the recommendations are voluntary and do not carry the weight of regulation, experts said.

“It’s guidance so, of course, that’s one of the biggest weaknesses in and of itself,” Ms. Tracy said. “It would be better if these programs were mandatory, but the guidance is good. It’s better than not having any guidance.”

The guidance also could have more fully addressed possible retaliation against temporary workers, part-time employees and even volunteers and unpaid interns and complex employer situations such as joint employer relationships, she said.

“I think everyone should feel comfortable raising concerns in the workplace,” Ms. Tracy said. “Since this isn’t a mandatory standard, I don’t see why OSHA can’t ask employers to consider including all these people in their anti-retaliation programs.”  

Ms. O’Rourke said it is unclear how the guidance will play out under President Donald Trump’s administration, with the new OSHA director expected to look closely at the agency’s electronic recordkeeping rule and its anti-retaliation provisions to determine if they are in line with the administration’s expressed interest in limiting regulatory burdens on business. 

“That may translate into de-prioritizing enforcement of certain rules, withdrawing them or using OSHA resources to provide compliance support to businesses to meet them,” she said. “Whether the guidance is later withdrawn or revised by the new administration, the best practices it contains benefit both employees and their employers.”