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During a Senate Subcommittee hearing on the adequacy of private sector whistleblower laws, Littler Shareholder and co-chair of the firm’s Whistleblowing and Retaliation Practice Group Gregory Keating urged lawmakers to “consider alternatives to increased penalties and deterrents in the whistleblowing context,” and recommended ways in which employers can adopt and promote cultures of compliance that encourage employees to approach management about their concerns before safety issues arise.
Keating, who was appointed in 2012 by former Labor Secretary Hilda Solis to serve as a management representative on the Occupational Safety and Health Administration’s Whistleblowing Protection Advisory Committee (WPAC), explained that a workplace with a “culture of ethics and compliance” is one in which “compliance with the letter and spirit of the law is both required and encouraged at every level of the organization; 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.” Such a corporate culture leads to safer environments and higher morale, Keating testified, and “can be best achieved through a private-public partnership with the employer community, rather than an adversarial approach focused solely on liability, punishment and deterrence.”
Clear, concrete agency guidance is also needed, Keating said. “Employers are clamoring for guidance on how to create this culture of compliance, and many are piloting revolutionary new technologies and techniques to do so. What these employers need most from OSHA and the DOL is concrete guidance about how to create this kind of culture and stronger incentives to invest company resources in doing so.”
When asked by Sen. Johnny Isakson (R-GA) about how employers can be incentivized to create such a culture of compliance, Keating recommended that Congress create similar incentives as those applicable to statutes such as the Foreign Corrupt Practices Act (FCPA). Under this statute’s sentencing guidelines, Keating explained, employers that take certain proactive steps are shielded from harsh penalties if a rogue actor within the company violates the law. Therefore, if an employer creates and enforces a culture of corporate compliance that allows employees to voice concerns without fear of retribution, the DOL should consider these efforts in the event of an alleged violation. “The vast majority of U.S. employers have a strong commitment to operating safe, ethical and lawful workplaces,” Keating testified. “With better guidance and stronger incentives, I believe they can and will continuously improve upon their efforts to do so.”
Keating also emphasized that it is important for employers to know what is available to help them create such a culture. For example, Keating suggested using employee surveys as a way to measure and improve workplace culture. In addition, he recommended that employers adopt a formalized system of complaint management, and train employees at all levels on the process. “Making employers more aware of specific, effective measures which they can adopt to enhance their workplace cultures will benefit not only those employers seeking this kind of guidance, but also the individuals they employ.”
Subcommittee Chairman Robert P. Casey, Jr. (D-PA) noted at the outset of the hearing that OSHA has approximately one inspector per 69,000 workers. Because of this shortfall, David Michaels, Assistant Secretary for Occupational Safety and Health, said that whistleblowers “serve as a check on government and businesses.” OSHA is the agency that oversees 22 separate whistleblower statutes, including Section 11(c) of the OSH Act. Since 2000, Michaels testified, all new whistleblower statutes under OSHA’s jurisdiction have more teeth than Section 11(c). According to Michaels, “Section 11(c) is badly in need of modernization.” He recommended that Congress make the following five changes to beef up the OSH Act’s whistleblower protections and align the statute with current whistleblower laws:
- Authorize OSHA to order immediate, preliminary reinstatement of wrongly discharged whistleblowers;
- Modify the adjudication process to provide an individual right of action or “kick out” provision enabling whistleblowers to pursue an alternate route for resolving their complaints if the DOL has not provided a final resolution within a certain period of time;
- Include a process for employees to obtain administrative review when OSHA dismisses a complaint;
- Extend the current 30-day statute of limitations for filing a complaint to 180 days; and
- Revise the burden of proof from the “motivating” to the “contributing” factor test.
According to Michaels, the agency currently dismisses about 200 cases each year solely on the statute of limitations issue. As for the lack administrative review under Section 11(c), Michaels said that it was “not fair that OSHA is the final arbiter,” and that it would benefit both employees and employers to have outside review.
Sen. Casey pointed out that implementing these changes via legislation is a slow process, and asked what can be done now. In response, Michaels cited Keating’s recommendation that steps be taken to promote a culture of ethics and compliance within organizations. Michaels also cited OSHA’s voluntary compliance programs, such as the Voluntary Protection Program (VPP) and the Safety and Health Achievement and Recognition Program (SHARP) as ways to encourage employers to be proactive about workplace safety.
A complete list of panelists, links to their testimony, and an archived webcast of the hearing can be found here.