whistleblower – Workforce

October 28, 2020

The 10th nominee for the Worst Employer of 2020 is … the whistleblower whacker

The Society for Human Resource Management describes itself as “the foremost expert, convener, and thought leader on issues impacting today’s evolving workplaces.” Physician, heal thyself!

According to a recent lawsuit filed against SHRM (as reported by The New Yorker), SHRM may have a huge whistleblower retaliation problem on its hands.

Here are the key allegations, which SHRM denies:

Bailey Yeager, a former director-level employee with a history of glowing performance reviews and promotions, expressed concern when the organization asked her in May for feedback about its proposal to return employees to the office after two months of working from home.
Expressing concern about potentially infecting her two daughters, she requested that she be allowed to continue working remotely “until returning to work is both more widespread regionally and there is a decline in the metrics regarding cases/hospitalizations.”
She also asked to see SHRM’s plans for reopening safely.
Two weeks later she, along with three other employees who had expressed similar concerns (including two with pre-existing medical conditions), were fired.
According to her OSHA complaint, SHRM CEO Johnny C. Taylor Jr. held a conference call during which he outlined plans to “outsource” job functions in departments in which employees had expressed resistance to returning to work in person.
Yeager’s complaint also alleges that Taylor bragged that he had spoken to his friend Eugene Scalia, the Secretary of Labor, and that an OSHA representative contacted Yeager to implore her to withdraw her complaint. (To be fair, it unclear if there is any nexus between Taylor’s call to Secretary Scalia and OSHA’s call to Yeager, but it is definitely implied in her complaint).

If you fire employees who reportedly dare ask for the ability to continue working from home, and potentially wield your influence with the federal government in an attempt to leverage the dismissal of the resulting lawsuit, while at the same time holding yourself out as the “foremost expert on issues impacting today’s evolving workplaces,” you might be the worst employer of 2020.

September 29, 2016June 29, 2023

Will OSHA’s New Whistleblower Rules Invalidate Your Settlement Agreement?

When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

Last month, OSHA published new guidance, part of its revisions to its Whistleblower Investigations Manual, which seeks to free employees to report safety and other violations to the government.

As part of OSHA’s administration of myriad whistleblower protection statutes, OSHA reviews settlement agreements between complainants and their employers. OSHA only approves such agreements that it deems to be fair, adequate, reasonable, and in the public interest, and if the employee’s consent was knowing and voluntary. If OSHA encounters a provision that prohibits, restricts, or otherwise discourages an employee from participating in protected activity, it will reject the agreement until the employer removed the allegedly offensive provision.

OSHA’s updated guidance clarifies the criteria OSHA will use to evaluate whether an agreement impermissibly restricts or discourages protected activity.

Moving forward, OSHA will not approve any of the following “gag” provisions:

A provision that restricts the employee’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on an employer’s past or future conduct. For example, OSHA will not approve a provision that restricts an employee’s right to provide information to the government related to an occupational injury or exposure.

A provision that requires an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.

A provision that requires an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.

A provision that requires an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency, or that requires an employee to remit any portion of such an award to the employer.

So, what is an employer to do? How can an employer secure as much finality as possible while satisfying OSHA’s stance against gag provisions? OSHA suggests prominently inserting the following clause into the agreement:

Nothing in this Agreement is intended to or shall prevent, impede or interfere with complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.

Another suggestion? Don’t go this alone. Work with your labor and employment counsel to ensure that your agreements are up to date with the ever changing legal landscape. If you haven’t recently updated your “standard” release, now is a good time to do so. The government is watching.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

June 14, 2016July 26, 2018

‘Concussion,’ Retaliation and Whistleblower Protections

Even if you haven’t seen the 2015 film “Concussion” starring Will Smith, you’ve undoubtedly seen the clip from the trailer of Smith intensely and emotively pointing his finger forward at two doctors and saying “Tell the truth” about concussions.

“Concussion” tells the story of Dr. Bennet Omalu, M.D., a forensic pathologist in Pittsburgh. The doctor discovered the slowly developing brain disease resulting from head injuries among NFL football players. He labeled it CTE, which is short for chronic traumatic encephalopathy.

Omalu also discovered that the NFL and its doctors did not welcome his discovery of this illness. Without giving away a good story, I can say that people discouraged Omalu’s work and attempted to undermine his credibility.

Of course, people can get concussions in various sports and activities and from accidents at home or work. Often, people are able to recover from such injuries. This story concerns recurring head traumas and the effects that show up many years later. Such brain damage has been hard to detect. Many people have not sought treatment and did not recover from CTE. (On March 28, JAMA Neurology published a new study on a biomarker that may help with early detection.)

Intimidation and Retaliation

Omalu’s story can also shed light on the well-known intimidation of and retaliation against whistleblowers in U.S. Veterans Affairs Department hospitals and in other organizations. It is important to keep in mind that when Omalu discovered that repetitive brain traumas produced an effect similar to early onset Alzheimer’s, he was a pathologist for Allegheny County, Pennsylvania. He was not an employee of the NFL.

He was harassed, intimidated and retaliated against, but not by his employer. He was not demoted, transferred or terminated by his employer. He did not suffer from “an adverse personnel action” by his employer.

The Problem

The Whistleblower Protection Act of 1989 protects whistleblowers from retaliation in the form of an adverse personnel action (or threat of one) by their employers. By the limited definition of retaliation under the act, Omalu was not the subject of retaliation.

Conscientious, responsible managers in environmental and occupational safety and health do want to hear the bad news, so they can take steps to deal with the problems. Conscientious, responsible managers in any business or government activity want to hear about problems so they can deal with them. Patrick Pizzella, former assistant secretary of labor for administration and management at the U.S. Labor Department (now a Member of the Federal Labor Relations Authority) is an example. While I worked on his safety and security planning committee for six years, Pizzella regularly asked: “Does anyone have any questions or comments?” And he acted on what he learned.

On the other hand, some do not want to hear about problems and they do not want anyone else to know about problems. These people sometimes intimidate or retaliate against people who report problems. This is not good for an organization, its employees or its clients/customers. “Don’t Nobody Tell Me No Bad News” is a great song from the musical “The Wiz,” but it is not good policy for those who follow it.

A Look at the VA

The problems at the VA hospitals and retaliation against VA whistleblowers received national publicity. Detailed allegations of many problems at VA were detailed in a 40-page document by the American Federation of Government Employees Local 17 in July 2015 with little visibility. In December 2015, Government Executive magazine reported that management at the VA would take no action on the problems alleged in the report.

Unlike the case of Omalu, the whistleblowers at the VA were employees. However, with a few possible exceptions, retaliation against complainers and whistleblowers did not involve demotion, transfer or termination. So the harassment and torment of the whistleblowers was not covered by the Whistleblower Protection Act. For example, purposeful public humiliation is psychological violence but, by itself, it is not retaliation under the act. (It is workplace violence.)

The brilliant Omalu is an exceptional man. Still, even he needed support from his faith community in Pittsburgh to get through the hassle of telling the truth about the NFL players’ injuries. Is it reasonable to expect the same courage and mental toughness from the average workers who desire to point out the problems they see?

This suggests to me that we do not have adequate tools to deal with those who intimidate and harass people who point out problems in the workplace.

Edward Stern served the U.S. Labor Department for 40 years as a senior economist and policy program analyst. He also has worked extensively with the Occupational Safety and Health Administration and is an expert on workplace bullying. To comment, email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.