In fiscal 2012, the US Dept. of Labor’s Occupational Safety and Health Administration (OSHA) reported employees filed almost 2,787 whistleblower retaliation claims. This number has been on the rise over the past few years, up from less than 2,200 in fiscal 2009. OSHA frequently trumpets its successes in these cases: for example it issued a press release earlier this year after a signalman with Chicago’s Metra commuter railroad line was awarded $38,080 overtime, interest, compensatory damages and attorney’s fees.
What the press release did not say – what OSHA hardly ever says except in the “Statistics” section of its website – is that this type of finding is the exception, not the rule. In fact, according to OSHA’s own statistics, a mere 2 percent of claims were found to merit agency action.
Despite the fact that only 45 of the 2,787 cases fall into the “merit” category (1,665 were dismissed, 565 were withdrawn and the 592 were settled), employers still must spend a great deal of time and money fighting these types of claims before they are withdrawn or dismissed.
In order to properly respond to meritless whistleblower retaliation claims, companies need to understand trends and developments in this area. They must also be prepared to properly respond if one of their employees claims retaliation.
For employers, the rise of meritless whistleblower retaliation claims represents a worrisome trend from a legal, cost and reputational standpoint. Responding to these types of claims is time-consuming and often stressful. Companies that find themselves accused of retaliating against whistleblowers can face devastating PR.
A proactive approach to avoiding these types of claims, and a swift response if they are filed is the best way to minimize or entirely avoid issues:
• Review existing whistleblower policies
• Develop a multi-disciplinary approach
• Depersonalize the process
• Set-up an anonymous reporting procedure
• Respond promptly and leave a paper trail
Documentation becomes even more important when whistleblowers face disciplinary or other actions not related to their claim. For example, a whistleblower may be part of an entire department that has its hours cut or may be docked in pay for chronic tardiness. In these types of situations, the company must be careful to ensure that the whistleblower is not treated differently than anyone else in an identical or similar situation. Supervisors must also be sure to create a record of events that led to the action. A whistleblower who has already filed some type of claim against the company may be more willing to do so again, or may claim retaliation where none exists.
Regardless of the situation, managers and supervisors need to carefully document every action they take, as well as explain why particular actions are taken. This will help employees understand why they were disciplined. It will also help the company prove its case to OSHA or the courts if the employee attempts to claim that he or she was retaliated against.
Even though a disturbingly large number of whistleblower retaliation claims have no basis, companies can pay a huge price when one is filed. Being proactive and prepared can minimize the fallout.
Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston.
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