Employment Law Report

Occupational Safety & Health Administration Seeking Comments on Whistleblower & Anti-Retaliation Guidelines

By Douglas L. McSwain

On November 6, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a news release that it will be accepting comments from the public on a draft document entitled, Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation.  Comments will be accepted by OSHA until January 19, 2016.

The guidelines in this draft document are well worth reading for all employers.  They are generalized enough that they provide a good internal prevention program for avoiding litigation, and even if litigation is brought based on an employer’s alleged retaliation, their implementation could supply employers a good litigation defense to defeat an employee’s claim (assuming, of course, the employer has adopted these “best practices”).

The Department of Labor (“DOL”), of which OSHA is a branch, is increasingly becoming the governmental agency before whom employers are brought for retaliation claims arising out of any number of areas of law governing the employment relationship.  Not just complaints regarding workplace health and safety are heard before this agency.  Soon employee benefit discrimination and retaliation claims arising out of an employee’s exercise of rights under the Affordable Care Act to purchase health coverage in a health benefit exchange and obtaining such coverage with tax subsidies will start being filed before the DOL.  And, numerous other areas of substantive employment law are overseen by the DOL where retaliation claims can be heard.

These Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation should provide employers with tools to identify risk, and avoid and/or defeat retaliation claims for alleged discrimination or retaliation under any number of whistleblower protections found in federal or state law.  Therefore, employers might want to consider commenting on this draft document, and in any event, give serious consideration to adopting OSHA’s “best practices” going forward.