A new rule by the Occupational Safety and Health Administration (OSHA) makes it easier for employees to file whistleblower retaliation claims under the Sarbanes-Oxley and Dodd-Frank acts. The rule permits whistleblowers to file complaints either orally or in writing, with the complaint needing to show only that an employee’s whistleblowing contributed to workplace retaliation to trigger an OSHA investigation.
“OSHA will proceed with an investigation, unless the employer can demonstrate by clear and convincing evidence that it would have taken adverse action regardless of the protected activity,” said Lisa Cassilly, partner in Alston & Bird’s Labor & Employment Group.
One concern is that the loosened requirements to file a complaint will lead to increased filings.
Cassilly notes that more complaints wouldn’t be a “sea change” from the steady increase the Labor Department has seen since 2005. “That’s a substantial uptick and a trend that’s continuing,” she said.
Cassilly also reminds companies to have clear policies and procedures that bar retaliation or reprisal against employees who may be engaging in protected activity and to ensure that supervisors and managers are aware of, and properly trained on, these policies.
“These measures have always been important, but they’re all the more important now, because we know we’re not going to get much relief by way of the final rule,” she said.
Cassilly also advised employers to treat anonymous reports as such: “Be judicious and thoughtful about who should be brought into the circle of confidence and only share with those who have a legitimate need to know about the complaint.”