BLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.
Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent. Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.
Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading
Authored By: Kara M. Maciel & Eric J. Conn
As we discussed in a recent webinar, employers are facing an increased risk of defending a retaliation complaint as administrative policy changes and expansive federal laws make asserting these claims easier for employees.
Whistleblower and related-retaliation charges are on the rise throughout the country, and the Occupational Safety and Health Administration (OSHA), tasked with fielding complaints under 22 laws, is also becoming more aggressive. The Equal Employment Opportunity Commission (EEOC) enforces the anti-retaliation provisions of several laws, including Title VII and the ADA. In addition, sweeping laws like the Affordable Care Act (ACA) are creating increased fodder for discrimination complaints. Armed with increased financial resources, federal investigators now aim to be more receptive to complaints as part of what the EEOC and OSHA view as needed reforms of their whistleblower enforcement arm.
Claims on the Rise
Retaliation claims under Title VII have grown substantially over the years. More than a decade ago, these claims made up less than a quarter of all EEOC charges, but since then they have increased exponentially. Now not only do they make up the most significant portion of claims, they are almost 50 percent of all claims brought. OSH Act 11(c) claims have also been increasing, and are now about double the number from 10 years ago. Despite the large number of 11(c) claims, however, about 72 percent of them are withdrawn or dismissed, and frequently are settled. Less than 1 percent actually receive a merit determination from OSHA.
Procedurally, there are important timing differences between an EEOC charge and an 11(c) claim. An EEOC charge must generally be filed Continue reading
On Wednesday, April 19th at 1:00 PM ET, Kara M. Maciel and Lindsay A. Smith will deliver a webinar regarding Whistleblower Investigations.
A host of federal and state laws include provisions prohibiting employers from retaliating against whistleblowers who engage in activities protected by the statute. The Occupational Safety and Health Act, Title VII of the Civil Rights Act, and several other laws that regulate the relationship between employers and employees, contain such whistleblower protections. Pursuant to these protections, the laws also provide a mechanism through which employees can report incidents of retaliation to the government to investigate and potentially bring an enforcement action against the employer. With the number of whistleblower claims continuing to rise in 2015, it is imperative for employers to understand what types of actions could be the impetus for a whistleblower investigation and the potential consequences.
Participants will learn the following:
- Specific requirements of the major employment-related laws, including the OSH Act and Title VII, that contain whistleblower protections
- Proactive measures employers can take to avoid whistleblower claims
- Strategies employers can use to effectively respond to whistleblower investigations and defend against enforcement actions
Here is a link to more information about that event and the registration page.