Both OSHA and OIG have regulatory standards aimed at protecting workers from retaliation from whistleblower complaints. Employers with a clear whistleblowing policy can create a work culture where wrongdoing can be addressed quickly, in many cases before there is any regulatory action or damage to reputation. A whistleblowing policy can also reinforce to staff the importance of their duty of confidentiality to their firm and clients.
OSHA’s Whistleblower Protection Program enforces the provisions of more than 20 federal laws protecting employees from retaliation for, among other things, raising or reporting concerns about hazards or violations of various workplace safety and health, aviation safety, commercial motor carrier, consumer product.
In essence, OSHA requires that an employer cannot take an adverse action against employees, such as: firing or laying off, demoting, denying overtime or promotion, or reducing pay or hours, for engaging in activities protected by OSHA’s whistleblower laws.
Even temporary workers are protected from retaliation
When a staffing agency supplies temporary workers to a business, both the staffing agency and its client (commonly referred to as the host employer) may be held legally responsible for retaliating against workers. For additional information on whistleblower protection rights of temporary workers, please see OSHA’s Temporary Worker Initiative Bulletin No. 3 – Whistleblower Protection Rights.
Employers must understand and avoid adverse actions
An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Retaliation harms individual employees and can have a negative impact on overall employee morale. Because an adverse action can be subtle, such as excluding employees from important meetings, it may not always be easy to recognize.
Adverse actions may include actions such as:
- firing or laying off;
- denying overtime or promotion;
- denying benefits;
- failing to hire or rehire;
- intimidation or harassment;
- making threats;
- reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings);
- reducing or changing pay or hours;
- more subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance;
- blacklisting (intentionally interfering with an employee’s ability to obtain future employment);
- constructive discharge (quitting when an employer makes working conditions intolerable due to the employee’s protected activity); and
- reporting or threatening to report an employee to the police or immigration authorities.
HIPAA/OCR also regulate to protect whistleblowers
HIPAA permits whistleblowers to file a complaint for HIPAA violations with the Department of Health and Human Services. However, unfortunately, whistleblowers who use the HHS complaint procedure are not eligible for a whistleblower reward as they are under the False Claims Act.
Whistleblowers need to know what information HIPPA protects from publication. This is because defendants often accuse whistleblowers of violating HIPAA when they report fraud. Therefore, understanding how to comply with HIPAA and its safe harbors can prevent a whistleblower from being victimized by these threats.
Whistleblowers who understand HIPAA and its rules have several ways to report the violations. These include filing a complaint directly with the government. In addition, HIPAA violations can lead to False Claims Act violations and even health care fraud prosecutions.
As you can tell, whistleblowers risk serious trouble if they run afoul of HIPAA. Luckily, HIPAA contains important safe harbors designed to permit vital whistleblower activities. Consequently, whistleblowers and their counsel who abide by those safe harbors can report allegations without fear of running afoul of HIPAA.
OIG False Claims Act targets fraud, waste, abuse, and safety
A filer under this ace may be an employee, former employee, applicant, or contractor who discloses information that she/he reasonably believes is evidence of:
- violation of any law, rule, or regulation;
- gross mismanagement;
- gross waste of funds;
- abuse of authority and
- substantial and specific danger to public health or safety.
OIG core value
Whistleblowers play a critical role in keeping our government honest, efficient, and accountable. A core value of OIG is protecting the diligent employees of the U.S. Department of Commerce and its contractors and grantees who step forward to identify potential wrongdoing in their organizations from unlawful reprisal. The OIG designed this page, and the linked information accessible from this page, to educate Department of Commerce employees, contractors, subcontractors, grantees, subgrantees, and personal service contractors about whistleblower protections and avenues for raising concerns.