Protect Against Whistleblower Retaliation

Strengthening company culture and processes can help protect against whistleblower retaliation.

If you ask any compliance professional if internal retaliation against a whistleblower is allowed, you’d get a resounding “No!” But what if you ask a front line manager? Are you confident that they’d understand both that retaliation is never acceptable and what, exactly, constitutes retaliation?

A U.S. Occupational Safety & Health Administration (OSHA) advisory committee made up of union representatives, corporate attorneys and government representatives recently declared that “retaliation against employees who report issues is all too common,” the Wall Street Journal reported. The main issue is that the vast majority of reports are made directly to a manager, rather than through a compliance hotline that would put the report into the hands of the corporate compliance team, Gregory Keating, of Littler Mendelson, P.C. and a member of the committee, told the Wall Street Journal. If the manager doesn’t properly handle the compliant—or even if the employee thinks the compliant wasn’t handled correctly—the potential for real or perceived retaliation emerges.

This is a very real concern for companies and can lead to lengthy legal action. Avoiding retaliaiton suits is more than just a policy though. The solution to this issue is three fold:

  1. Create a company culture of compliance that makes compliance every employee’s responsibility.
  2. In-depth, regularly recurring non-retaliation training for managers at all levels—including examples of what retaliation looks like.
  3. A transparent, consistently enforced approach to reports and investigations that leave employees feeling they are treated fairly.

Company Culture

The No. 1 thing companies can do to protect against whistleblower retaliation is to foster an environment where every employee feels responsible for compliance and protecting the organization. While easier said than done, achieving this type of atmosphere takes the whistleblower out of the realm of a tattle tale and elevates them to the role of brave company protector. This cultural understanding of compliance will inherently make the desire to retaliate recede.

A lot has been written on how to achieve a culture of compliance, so I won’t bore you too much with that here. Just know that it’s important and cannot truly work without the buy-in from every level of your organization. Yes, tone at the top is incredibly important, but every employee needs to feel that the compliance program is working for them as well.

“By ‘culture of ethics and compliance,’ I mean a workplace in which … employees feel welcomed and encouraged to share concerns about possible non-compliance; and individuals who come forward in good faith to report possible misconduct or safety concerns can do so without fear of retaliation of any kind,” Keating said during this committee testimony.

 Better Training

A culture of compliance will go a long way to help protect your organization against retaliation claims, but in the meantime, a strong training program can help you address this issue head-on. (Even after your company achieves that gold standard of a culture of compliance, training should still be strong and consistently administered. A culture lays the ground work; training helps you guide your team on the real day-to-day meaning of compliance.)

Write a policy that outlines what you mean by retaliation and explains why isn’t not allowed—both from a legal standing and as an ethical company. This policy will give your managers something to go back to if they have a question. Then take that policy and work it into an in-depth, interactive training that will really resonate with managers at all levels.

Training is particularly important because you want to make sure that managers not only avoid any retaliatory actions, but truly understand what retaliation can mean and look like. It could be that a manager only considers firing a whistleblower to be retaliation, not realizing that “softer” actions can also be illegal.

“The guidelines urge companies to better train managers on the many forms that retaliation can take, including ‘less overt behaviors such as peer pressure, ostracizing, mocking, and exclusion from meetings,'” reported the Wall Street Journal.

There have been whistleblower retaliation lawsuits stemming from incidents such a moved desks and offices, specific job placements and bullying in addition to the more commonly thought of terminations, demotions and being passed over for a promotion. Training managers to understand that any retalitory action is not tolerated—and explaining with clear examples—is key.

Transparency

Finally, a transparent investigation process that keeps the reporter in the loop is key to preventing perceived retaliation. Even if a manager’s actions are totally benign and driven by true business reasons unconnected to any whistleblowing report, if the whistleblower feels their report wasn’t given due diligence they can feel they were wronged and are being punished for filling the report.

“After seeing their issues waived off, whistleblowers sometimes see every negative workplace experience–from missed promotions, to critical feedback–as evidence of retaliation,” Keating told the Wall Street Journal.

Making sure every whistleblower report, no matter how small or inconsequential it may seem, is passed onto compliance teams adds an air of independent review to the matter. When the compliance team or independent investigator or auditor makes a final judgement, it helps to inform both the reporting party and the manager so they can see that the issue was taken seriously and carefully considered. At this point, careful teams may also want to send the manager the non-retaliation policy as a refresher.

Another key element is ensuring all cases are treated consistently. Regular audits or a case management solution that lets teams easily track outcomes helps to ensure fairness across the board. It’s critical that employees don’t feel that certain job levels or connectedness lead to more favorable outcomes.

While the OSHA committee and the new guidelines it’s producing look specifically at workplace safety whistleblowing, the larger message of better training, process transparency and an overall culture that embraces compliance carries into the broader company and could help guard against retaliation issues.

This blog post is not intended to serve as legal advice.