Whistleblower Protections Incentivize Development Of Strong Anti-Retaliation Programs

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The U.S. Department of Labor recently announced that the Occupational Safety and Health Administration (“OSHA”) will oversee worker retaliation complaints under the Criminal Antitrust Anti-Retaliation Act (“CAARA”) and the Anti-Money Laundering Act (“ALMA”). Some employers may wonder why OSHA will be involved in overseeing enforcement of financial regulations. This is not new territory for OSHA, however, which oversees the whistleblower retaliation protections for over 20 federal statutes, involving a gamut of violations from workplace safety and health to securities, financial, and antitrust laws.

Under CAARA, covered individuals are protected from retaliation for assisting in Federal Government investigations or for providing information to the Federal Government or to that individual’s supervisor or other person working for the employer with authority to investigate, discover, or terminate misconduct regarding suspected violations of U.S. antitrust laws.

Unlike certain other whistleblower protection statutes, however, CAARA does not provide potential financial incentives for whistleblowers to report claims to the Federal Government. Instead, the statute provides only that whistleblowers may be entitled to relief that will make the covered individual whole – i.e., reinstatement of prior status, back pay, etc. In contrast, ALMA provides mandatory monetary rewards for whistleblowers of up to 30% of all recoveries above $1 million. Without financial incentives to bypass reporting to an employer to report directly to the Federal Government, employers with effective compliance programs that encourage employees to report concerns internally (and not retaliate against those employees) may benefit.

OSHA encourages employers to set up anti-retaliation programs to protect whistleblowers from retaliation for reporting issues internally. Such programs should include five key elements: (1) management commitment; (2) procedures to listen and respond to employee concerns; (3) a system of receiving and responding to reports of retaliation; (4) effective anti-retaliation training; and (5) rigorous oversight with improvement/modification as necessary. Such a well-developed program will incentivize employees to report concerns internally. In turn, it will allow the employer to investigate those claims and, if necessary, self-report to the Federal Government, obtaining the advantages and penalty mitigation of promptly doing so.

With OSHA’s new whistleblower oversight authority over retaliation for antitrust violations, this is a good time for employers to revisit their compliance programs and make sure they prohibit retaliation and incentivize employees to report concerns internally.

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