OSHA Recommends Anti-Retaliation Training for Employees, Managers
In January 2017 the US Occupational Safety and Health Administration (OSHA) released guidance on recommended practices for anti-retaliation programs. The guidance is intended to help employers keep their workplaces free from retaliation, both generally and for the 22 whistleblower laws enforced by OSHA.
OSHA notes that retaliation against employees who raise or report concerns is illegal and is bad for business. A proactive anti-retaliation program should receive and respond appropriately to employees’ compliance concerns and should prevent and address retaliation against employees.Without an effective program, OSHA says, “problems in the workplace may go unreported because workers fear retaliation for reporting concerns or feel frustration over the lack of effective resolution of their concerns.”
Employers should create a cohesive anti-retaliation program to support employee reporting and to protect employees from retaliation. The program should include the following elements:
- 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
- Program oversight
OSHA’s guidance reiterates a point we’ve made before: that senior management should lead by example to demonstrate a commitment to preventing retaliation and a culture of valuing and addressing employees’ concerns regarding potential violations of the law.
According to OSHA, “[e]ffective training of employees and all levels of management and the board (if applicable) is key to any anti-retaliation program” because training provides management and employees with the knowledge, skills, and tools they need to recognize and properly address hazards, potential violations of the law, and retaliation.
Anti-Retaliation Training for Employees
At a minimum, anti-retaliation training for employees should cover:
- Relevant laws and regulations
- An explanation of the employer’s commitment to (1) creating an organizational culture of compliance, (2) addressing concerns about potential hazards and violations of the law, and (3) complying with its code of ethics, including prohibitions on retaliation
- Employees’ rights and obligations to report potential hazards and violations of the law externally, regardless of whether they reported the violation to the employer
- Laws protecting employees from retaliation for reporting potential violations
- The elements of the employer’s anti-retaliation program
- What constitutes retaliation
Anti-Retaliation Training for Managers
Training for managers should include the above elements and, at a minimum:
- Skills for defusing conflict, problem solving, and stopping retaliation
- How to respond to a report of a workplace concern while protecting an employee’s confidentiality and without engaging or appearing to engage in retaliation
- How to separate annoying or inappropriate behavior from the concern itself
- Consequences for managers who fail to follow anti-retaliation policies or who respond to concerns inappropriately
- How to recognize that an employee believes there has been retaliation, when employers are required to act, and the potential legal consequences for inaction
- Other issues specific to the employer
Employers should stay up-to-date on changes to anti-retaliation laws and regulations and should update their training and policies accordingly. Refresher training should be conducted on a regular basis and as needed, such as when there is a change in legal requirements or when retaliation has occurred. Concepts from the training should be reinforced frequently using other types of communications, in order to make it part of the workplace culture.
Other Anti-Retaliation Training
In August 2016 the Equal Employment Opportunity Commission (EEOC) issued its own enforcement guidance on retaliation. The EEOC included training as a “promising practice,” advising employers to train managers, supervisors, human resources staff, and employees on the employer’s written anti-retaliation policy and to send a message that retaliation will not be tolerated.
In addition, in 2016 California amended its Fair Employment and Housing Act (FEHA) regulations to require employers to create written policies to prevent harassment, discrimination, and retaliation. Employers with more than 49 employees must provide anti-bullying training that explains supervisors’ obligations to report harassment, discrimination, and retaliation when they become aware of it.
The Securities and Exchange Commission (SEC) has also increased the scope of its protection of whistleblowers.
OSHA is serious about protecting workers from retaliation, and has required employers to conduct anti-retaliation training as a condition of settling claims. For instance, OSHA recently required a Pennsylvania masonry company that fired a whistleblowing employee to pay back wages and damages and to provide supervisors with anti-retaliation training.
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