With whistleblower suits already on the rise, a new online submission form may help trigger another upsurge in retaliation claims.
The Office of Information and Regulatory Affairs recently approved an online retaliation complaint form that would allow employees to electronically submit claims under any of the 22 whistleblower statutes overseen by OSHA, which currently accepts only verbal or written whistleblower complaints.
An increase in the number of whistleblower complaints filed is “the only possible outcome” of making the form available online, says Sara Begley, the Philadelphia-based co-global practice leader for the labor and employment group and head of U.S. labor and employment with Reed Smith.
“The new option facilitates complaint filing for aggrieved individuals by removing procedural deterrents in the current OSHA system,” she says, “under which individuals must submit complaints in formal writing (a more time-consuming process) or orally (within the agency’s regular business hours).”
The greatest increase in complaints, she says, is likely to come from individuals who have already filed a charge or court complaint over an adverse employment action.
“It is those individuals who are most likely to be represented by counsel who are aware of the new OSHA option, and who will be eager to tap additional methods to exert settlement pressure on employers.”
To avoid formal agency involvement, HR leaders “should act quickly to bolster their internal complaint filing procedures,” says Begley, who recommends training on codes of conduct and policies against whistleblower retaliation, implementation of a 24-hour, internal online complaint mechanism “to match the ease of filing being offered by OSHA,” and workforce communications emphasizing that the organization will treat internal complaints seriously.
The form’s online availability could very well lead to an increase in retaliation claims, says Mark Spring, a Sacramento, Calif.-based partner with Carothers DiSante & Freudenberger.
But he’s not so sure it would lead to a drastic escalation in claims with real merit.
“I believe that employees [with] legitimate claims they feel strongly about are willing to spend the time to reach out and contact someone at OSHA to have their complaint processed.”
On the other hand, those with more questionable claims “are likely much less invested in the process,” continues Spring. “While such folks may not be willing to contact OSHA to have their complaint filed or processed, they may be willing to simply fill out an online retaliation form.”
While the intention may be to simplify and speed up the filing process, taking it online could actually wind up frittering away valuable time and resources at OSHA, says Spring.
“I would be very fearful that this online complaint process will turn into a giant private message board that employees and others use for purposes having nothing to do with the filing and processing of legitimate complaints.
“I would fear that the OSHA employees assigned to review and investigate the so-called ‘complaints’ that would be lodged in such a manner would get so bogged down with the volume and morass of information being submitted that the real, important violations [would] be difficult to find and [would] not be remedied and corrected [in as timely a way] as they could be.”