Whistleblower cases have been prominent among workplace litigation cases and the number of disputes have grown dramatically in the past 10 years.
In 2012, the number of whistleblower cases submitted to the Department of Labor’s Occupational Safety and Health Administration (OSHA) reached 2,787. Now, with the COVID-19 pandemic and all the workplace safety hurdles that have come with it, OSHA are processing more than 5,000 alleged whistleblower retaliation claims per month, according to its website.
The Biden administration announced vaccine requirements for employers with 100 or more employees on Sept. 9, and OSHA is expected to release guidance for its emergency temporary standard (ETS) to inform how employers should proceed with implementing it.
There are various legal challenges to this mandate currently underway, and there are likely to be a host of legal challenges in the way which employers implement OSHA’s ETS, including those of the whistleblowing variety, said Kevin Griffith, co-chair of Littler Mendelson P.C.’s whistleblowing practice group.
“I would expect legal challenges to accelerate,” Griffith said. “Whether they’re whistleblower or based on something else like wrongful discharge, wrongful termination claim or disability discrimination or even religious objection, we’re likely to see an uptick in legal challenges.”
At its core, whistleblowing is an employee complaining about what they perceive to be unlawful or improper conduct in the workplace. So, employers simply imposing a vaccine mandate wouldn’t be subject to a whistleblower complaint. However, how employers implement a vaccine requirement or how they respond to an employee challenging, both positively and negatively, to how it was implemented, could lead to whistleblower retaliation suits.
Avoiding Whistleblower Complaints
COVID times being what they are, it might be unrealistic for large employers to completely avoid any legal issues surrounding vaccine requirements or workplace safety complaints. However, organizations will position themselves well to do just that with good communication, transparency and flexibility, Griffith said.
Additionally, he said, focusing on a compliance culture that is conducive to employees being comfortable coming forward about uncomfortable or unsafe working conditions.
“Employees should be encouraged to speak up about possible problems in the workplace,” Griffith said. “Whether it’s possible unlawful conduct or a poor way of doing things from an employee’s perspective, just allowing employees to feel comfortable and safe about speaking up about problems and not being fearful that, if they speak up they’ll be retaliated against with adverse employment action.”
Griffith noted that this is a relatively new concept for many organizations, as a common refrain from employers used to be that of a dismissive tone when employees would bring forth concerns about the workplace environment.
“In 2021, given how easy litigation is to bring in the United States, the best forward-thinking employers openly talk about having a compliance culture and how that’s actually much more positive for everybody involved,” he said.
One issue that employers should be cognizant of as it relates to whistleblowing is to make sure the complaints are coming in good faith, added Griffith. There are various instances of employees taking advantage of a “speak up” culture, often times to better their standing within the organization.
“While companies want people to come forward, sometimes that encouragement of speaking up gets abused,” Griffith said. “The concept is come forward with good-faith complaints and honest reports about possible problems, but don’t try to use the system to cover up your own bad conduct or save yourself from poor performance. It’s good to have in place and I strongly recommend it, but you also have to be practical about human nature.”