Management's Workplace Lawyers

OSHA Releases Anti-Retaliation Guidance

January 31, 2017

The Occupational Safety and Health Administration announced that it was issuing a guidance document, “Recommended Practices for Anti-Retaliation Programs,” intended to assist employers with creating workplaces free from retaliation. OSHA’s recommendations, which are not mandatory, are intended to be adaptable to all employers.

Protections against retaliation. The guidance first discusses the whistleblowing protections offered by 22 federal statutes enforced by OSHA, noting that employers may not retaliate against an employee for engaging in activities protected by those statutes. Such activities include, among other things: filing a report with a governmental agency about possible violations; reporting a possible violation to an employer; reporting a workplace illness, injury or hazard; cooperating with law enforcement; and refusing to violate the law.

What is retaliation? The guidance explains that retaliation is any adverse action that is taken because the employee engages in a protected activity, which can chill an employee’s willingness to raise workplace concerns. It also discusses the types of adverse employment actions that could constitute retaliation: firing or laying off; demoting; denying overtime or promotion; disciplining; denying benefits; failing to hire or rehire; intimidation; making threats; blacklisting; reassignment to a less desirable position or actions affecting prospects for promotion; reducing pay or hours; and more subtle actions such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance.

Creating an anti-retaliation program. The guidance outlines five key elements of an effective anti-retaliation program, with numerous and specific suggestions on how to implement each of these elements:

1.     Management leadership, commitment, and accountability.

2.     System for listening to and resolving employees' safety and compliance concerns.

3.     System for receiving and responding to reports of retaliation

4.     Anti-retaliation training for employees and managers

5.     Program oversight

The guidance concludes by providing information about how employees may contact OSHA with any concerns, whether in person, by telephone, by mail, or online.