If you run a small business, chances are you have not spent much time thinking about whistleblowers and whistleblower protection. Many high-profile whistleblower cases involve sounding the alarm on fraud and government contracts, but government contractors are not the only ones who need to understand whistleblower laws. Virtually any employee "who blows the whistle" on unlawful activity is entitled to protections. There are a number of state and federal whistleblower protection laws, but OSHA oversees a large swath of these protections.
What Whistleblower Laws does OSHA Enforce?
OSHA's mandate is broad. OSHA will oversee whistleblower claims relating to workplace safety or health, asbestos in schools, cargo containers, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, motor vehicle safety, and securities laws. Chances are, if you are running any kind of business, OSHA is going to have some oversight involving whistleblower protection.
When Does OSHA Get Involved?
All Whistleblower laws try to prevent retaliation against an employee for engaging in a protected activity. An employee is engaging in a protected activity if they report violations of the law to any person or state or local government. An employer retaliates by undertaking any kind of adverse unfavorable personnel action including termination, demotion, denying overtime or promotion, discipline, reducing pay or hours, and suspension. An employee who is retaliated against may file a complaint with OSHA which triggers an investigation.
How to protect against retaliation claims
Once an employee has complained, a business needs to proceed cautiously. The employee can still be disciplined for conduct not related to the whistleblowing, but any kind of discipline is probably going to be construed as retaliation.
Every business should create a whistleblower policy and then follow it meticulously. Components of this policy might include:
Have a complaint system and investigate complaints thoroughly. You want to promote a culture of openness. This includes having a complaint system that protects both the person coming forward with the complaint and the target of the complaint. Even if you discover that another employee is not complying with legal requirements, chances are they are making innocent mistakes that can be corrected early.
Document, document, document. Every step of the investigation needs to be documented. Employee statements should be written down. The dates and outcomes of any steps of the investigation could be recorded. Records are key in making sure the investigation is fair and proving that later. Your employee is probably keeping a real-time journal, you need to do the same.
Proceed cautiously with discipline. Any discipline is going to be perceived as retaliatory. If you must discipline the employee for other conduct, make sure best efforts are made to explain the reasons for the disciplinary action to the employee. Again, document those reasons clearly and thoroughly.