Public Comments Due for Whistleblower Reporting Guidelines
BY AsphaltPro Staff
The concept of deputizing “whistleblowers” arose out of wartime necessity, the Civil War to be specific, and the enactment of “Lincoln’s Law,” the Federal False Claims Act, in 1863. The statute built upon the ancient concept of protecting the King’s property by enlisting the public to report fraud. The reporter, commonly called the Qui Tam relator, is “one who sues on behalf of the King as well as himself,” according to Black’s Law Dictionary (6th Ed. 1990). A private citizen by virtue of bringing the wrongdoing to the attention of the government, gets the statutory right to share in any recovery—sometimes as much as 30 percent.
Fast forward to now: Whistleblower reporting is on the rise. FY 2014 saw a 20 percent increase in whistleblowing reports over the previous year, and 40 percent of those employees receiving awards were current or former employees of the business. 2014 also saw the first Securities and Exchange Commission retaliation case brought under the Dodd-Frank Act. The aerospace and defense industry ranks third in number of whistleblower reports, and the construction industry ranks twelfth. To respond to this growing issue, the Occupational Safety and Health Administration (OSHA) has issued guidelines to define best practices to protect those people who report activities that could have an adverse impact on the safety, health or well-being of the reporting employee, other workers or members of the public.
Nov. 6, 2015, OSHA released its recommended guidelines and is seeking public comment. Specifically, OSHA is requesting comments on the draft document “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation.” Comments are due by Tuesday, Jan. 19, 2016.
The recommendations contain six key elements: (1) leadership commitment; (2) creation of a true “speak up” organizational culture that is the basis of a prevention-oriented program that encourages raising, and fair resolution of, issues; (3) independent, protected resolution systems for allegations of retaliation; (4) specific training to teach workers their rights and about available internal and external protection programs, and for managers to learn these along with related skills, behaviors and obligations to act; (5) monitoring and measurements that don’t contribute to suppression of reporting and which measure the effort and effectiveness of inputs to a speak-up and non-retaliation culture; and (6) independent auditing to determine if the program is actually working.
All of these recommendations should already be part and parcel of your company’s Ethics and Compliance Program. An Ethics and Compliance Program that includes a “Retaliation Reporting System” has many benefits including: increased compliance and reduction of liability and risk; creation of a culture that fosters workplace fairness and organizational justice and early detection of issues and the opportunity for the corporation to effectively and timely address them before they become larger problems. If your company does not have a Retaliation Reporting System in place, now is the time to consider implementing one.
Author Bio: Lorraine D’Angelo
Lorraine D’Angelo, a nationally-recognized expert on legal and regulatory risk management, is the president of LDA Compliance Consulting, Inc. She has more than 25 years’ experience in the construction industry, including a recent tenure as senior vice president for ethics and compliance at a global construction company. D’Angelo is an accredited ethics and compliance professional and a leading expert on small, women-owned, minority and DBE matters, programs and policy implementation. For more information, contact her at (914)548-6369 or Lorraine@ldacomplianceconsulting.com.