Protecting Whistleblowers Helps Employers

Employers do themselves a favor by taking seriously the complaints of their employees blowing the whistle on illegal or unethical conduct, says HR expert Robin Paggi.

Protecting Whistleblowers

by Robin Paggi

When you hear the word “whistleblower,” you probably think of someone like Edward Snowden, the former National Security Agency subcontractor who leaked top-secret information about NSA surveillance activities. Or, you might think of Sherron Watkins, who warned Enron founder Kenneth Lay that the company faced financial doom if it didn’t clean up its disastrous accounting practices a few months before it came crashing down.

These well-known examples suggest that whistleblowing only happens in the government or in big, nationally recognized companies. That isn’t so. If you own a small company, one of your employees could become a whistleblower and, if that happens, you need to protect that employee in order to protect yourself.

A whistleblower is an employee who discloses any kind of information or activity about its employer that is deemed illegal, unethical, or not correct. The disclosure may be to a government or law enforcement agency, person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct the situation. Employees who provide information or testify in an investigation, hearing, or inquiry are also considered whistleblowers.

Information that is disclosed by an employee working in a small company often includes not being paid properly, being made to work in unsafe conditions, or being harassed. This information is often provided to employers and supervisors or to government agencies, such as the Labor Commissioner, OSHA, or the Equal Employment Opportunity Commission. These kinds of complaints (whether provided internally or externally) might not seem like examples of whistleblowing, but they are.  Therefore, employers need to take them seriously and respond appropriately.

Unfortunately, employers often respond inappropriately when employees make complaints. Tom Devine, legal director with the Government Accountability Project, says that employers often view complaining employees “the same way that any animal views a threat” and respond defensively by taking adverse action against complainants such as terminating, demoting, relocating, or disciplining them.  In case you’re wondering, that’s considered to be retaliation and is illegal.

Think I’m exaggerating about employers often retaliating against complainants? Here are just a few examples of workplace retaliation in my home state of California:

Mark Ramijak, an account executive for FileNet Corp. in Costa Mesa, filed a claim with the Labor Commissioner for unpaid commissions. Shortly thereafter, his sales territory was reduced. Ramijak sued for retaliation and was awarded $2.7 million by the jury.

Herbert Alexander, a trucker with Skyway Inc., complained to his employer that his rig was leaking oil, had bald tires, and was infested with bedbugs. His employer then docked his pay for the cost of repairs and refused to give him more work. Alexander filed a Cal OSHA whistleblower lawsuit against the company, which settled for an undisclosed amount.

Regina Venegas, a dishwasher with The Good Fork restaurant in Morgan Hill, told the restaurant owner that a supervisor had flashed his buttocks at her. Venegas was subsequently told that the restaurant no longer had work for her. The EEOC sued on her behalf and the owner paid $20,000 to settle the suit.

What can employers do to prevent such lawsuits? Instead of getting back at employees for complaining, employers should encourage employees to voice their concerns to them, thank them for coming forward, and fix whatever problems they revealed as soon as possible.

Additionally, when employees inform employers about the misdeeds of their co-workers (such as working unsafely, theft, being under the influence, etc.), employers need to protect the identity of complainants as well as protect them from being retaliated against by other employees. A warning that getting back at the complainant in any way will result in disciplinary action is usually necessary.

Our DNA encourages us to fight when we feel threatened. However, the real way to survive in the working world is to protect complaining employees, not punish them.

Robin Paggi is the Training Coordinator at Worklogic HR.

She last wrote for us on  Managing Five Generations at Work, before that on Accommodating Religious Beliefs and before that on Politics and Workand before that on Emojis-A Workplace Communications Menace and before that on Alcoholism and the ADA in Employment. To read her previous columns, search Paggi in the search box at the top of this home page.

OSHA Updates Recommended Workplace Safety and Health Practices For First Time Since 1989

It’s been more than a quarter of a century since the federal government updated its recommended practices for workplace health and safety.

To reflect changes in the economy, workplaces, and evolving safety and health issues, the Occupational Safety and Health Administration on Tuesday released an updated set of recommendations. The agency said they  feature a new, easier-to-use format and should be particularly helpful to small- and medium-sized businesses.

Also new is a section on multi-employer workplaces and a greater emphasis on continuous improvement. Supporting tools and resources are included.

Key principles include: leadership from the top to send a message that safety and health is critical to the business operations; worker participation in finding solutions; and a systematic approach to find and fix hazards

The press release announcing the new recommendations is here.

Click here to read the new recommendations.

Agencies Warn HR About Hiring, Compensation Practices that Run Afoul of U.S. Antitrust Laws

HR has alot on its plate. Now add one more item: Whether their company’s hiring and compensation practices violate antitrust law.

I’ve taken the liberty here of quoting nearly verbatim today’s announcement from the Antitrust Division of the U.S. Justice Department and the Federal Trade Commission, since when these agencies speak it pays to listen.

“HR professionals are often in the best position to ensure their companies’ hiring practices comply with the law and this guidance will help educate and inform them about how the antitrust laws apply to the employment arena,” the agencies said.

Workers are entitled to the benefits of a competitive market for their services.  They are harmed if companies that would ordinarily compete against each other to recruit and retain employees agree to fix wages or other terms of employment or enter into so-called “no-poaching” agreements by agreeing not to recruit each other’s employees.

Naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between the employers, DOJ threatens.  These types of agreements eliminate competition in the same irredeemable way as agreements to fix the prices of goods or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct.  Agreements that do not constitute criminal violations may still lead to civil liability under statutes enforced by both agencies.

“Antitrust violations in the employment arena can greatly harm employees and impact earnings over the course of their entire careers,” said Acting Assistant Attorney General Renata Hesse of the Justice Department’s Antitrust Division.  “HR professionals need to understand that these violations can lead to severe consequences, including criminal prosecution.  The newly released joint guidance provides HR professionals with information to prevent violations and report potentially unlawful activity, furthering the Justice Department’s commitment to protect workers from harmful conduct that stifles competition.”

“Competition is essential to well-functioning markets, and job markets are no exception,” said Chairwoman Edith Ramirez of the Federal Trade Commission.  “These guidelines will help ensure that employers understand how to comply with the antitrust laws and will help employees reap the benefits of a competitive market for their services.”

The guidance also discusses how the antitrust laws apply to firms’ decisions to share sensitive information, such as compensation information, with competing employers, either directly or through third party entities.  Information sharing may violate antitrust law unless the information exchange is carefully designed to prevent harm to competition.

The agencies’ joint guidance includes a Q&A section that explains how antitrust law applies to various scenarios that HR professionals might encounter in their daily work lives.  The agencies also urge HR professionals and others who have information about possible antitrust violations to contact the Justice Department Antitrust Division’s Citizen Complaint Center or the Federal Trade Commission’s Bureau of Competition.

The agencies have also issued a quick reference card that encapsulates some of this information in a convenient, index-card-sized format.  The card provides a list of antitrust red flags that HR professionals should look out for during their day-to-day work.  The listed situations are not exhaustive, and the existence of a red flag does not necessarily imply an antitrust violation.  Still, HR professionals should proceed with particular caution if they are confronted with any of the scenarios listed on the card.  By doing so, HR professionals can play an important role in protecting employees and consumers and ensuring the competitiveness of the employment marketplace.

OSHA Releases Top-10 List of Workplace Safety Citations in 2016; Fall Protection Is Number One

David Letterman had his top 10 list–and so does the Occupational Safety and Health Administration.

A list of the top 10 workplace safety hazards, that is.

In a blog post yesterday, Thomas Gallasi, the director of enforcement programs at OSHA, released a preliminary list of the 10 most frequently cited safety and health violations for the fiscal year, compiled from nearly 32,000 inspections of workplaces by federal OSHA staff.

“One remarkable thing about the list is that it rarely changes,” he said. “Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.”

The list consists of:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

Although, by law, employers are responsible or providing safe harbor and healthful workplaces,m ore than 4,500 workers are killed on the job every year, and approximately 3 million are injured.  “If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.”

McDonald’s Serves Up $56K Settlement in ADA Lawsuit Over Refusal to Interview Deaf Applicant

For $56,500, a McDonald’s restaurant in Belton, Missouri is extricating itself from an Americans With Disabilities Act lawsuit stemming from its refusal to interview a deaf applicant following his request for a sign language translator.

As I wrote about when the suit was filed in December, the EEOC alleged that the young man applied online in June 2012 for a position at the Belton McDonald’s. The applicant, who is unable to hear or speak, had previous experience working at a McDonald’s in another state as a cook and clean-up team member.

According to the suit, when the restaurant manager learned that the young man needed a sign language interpreter for his job interview, she canceled his job interview, even though the applicant’s sister volunteered to serve as an interpreter. The restaurant continued to interview and hire new workers after the young man made several attempts to reschedule an interview.

“Unemployment rates for disabled workers far exceed those of the general population, and employers create a huge barrier to employment when they fail to provide necessary reasonable accommodations to applicants with disabilities. Such behavior is short-sighted in addition to being unlawful,” said EEOC Regional Attorney Andrea G. Baran, in the settlement announcement today.

EEOC, in ADA Lawsuit, Accuses Salvation Army of Denying Job to Mentally Challenged Applicant

The Salvation Army will have to face the music of a disability discrimination lawsuit over its alleged denial of a job to a young applicant with an intellectual disability.

The alleged violation of the Americans With Disabilities Act occurred at the Salvation Army’s story in Wasilla, Alaska – coincidentally the town that Sarah Palin was mayor of prior to being elected the state’s governor.

According to the EEOC, the Salvation Army store manager recommended hiring the applicant, who was in his early 20s, as a donation attendant in spring 2014, based on the strength of his initial interview.

This position required no prior experience and simply involved accepting and sorting goods. The young man had completed high school and a follow-up job readiness program, finished three internships at medical centers, and held a part-time job at a local church.

However, the Salvation Army requested a highly unusual second interview. Ultimately, the EEOC alleges, the organiza­tion ultimately rejected this applicant due to stereotypes about his ability to interact with the public.

“This applicant was fully capable of doing this entry-level job,” said Nancy Sienko, director of EEOC’s Seattle Field Office. “Being judged by his disability instead of his actual abilities and accomplishments was a big blow to a young person at the start of his job search – and disadvantaged the Salvation Army as well.”

Read more about the lawsuit filed today.

Managing Five generations at Work

Our resident blogger HR expert Robin Paggi draws on her family’s experience to offer tips on how to manage multiple generations in the workplace.

Managing Five Generations at Work

At the age of 80, my dad is the oldest person I know who is still working. However, he’s not the only person his age still in the workforce.  About 5 percent of today’s workers include people who are 71 and older – known in generational terms as the Traditionalists (born 1920-1945).

At the age of 15, my granddaughter is enrolled in a training program that could lead to a paid summer internship. If she gets it, she will be the youngest person I know in the workforce and will join the 23 million people in her generation (born around 1990-2002 and called Gen Z, Millennials, and a variety of other names) who have recently or are about to start working.

In between the two of them, there are three generations: Baby Boomers (born 1946-1964; 45% of workforce), Gen X (born 1965-1976-ish; 40% of workforce), and Gen Y or also called Millennials by some (born 1977ish-1989-ish; 10% of workforce). Although the dates and names of the younger generations are ambiguous, one thing is clear – trying to manage an 80-year-old, a 15-year-old, and everyone in between is challenging. One of the challenges is that different generations need different things from their employers and supervisors.

For example, one Gen Y supervisor told me that she liked to meet with her employees individually once a week to give them feedback on their performance. As someone who likes continuous feedback, she thought her employees would like it too. She was puzzled when one of her older employees told her, “Honey, no news is good news.” The supervisor didn’t know what that meant. I explained that older employees were used to a management style in which managers generally only talked to employees when they had done something wrong. So, “no news is good news” probably meant the employee didn’t want the weekly feedback. In fact, the employee might have felt degraded by her younger supervisor constantly talking to her about her performance.

On the other hand, one Baby Boomer supervisor told me that she was fed up with a younger employee always asking whether he had done a good job on the tasks she had given him. I asked if the employee usually did a good job; the supervisor said he did. I asked if she told him so. She responded no, that he was so needy she refused to tell him. I explained that younger generations are generally used to getting more feedback and praise from their parents and teachers, and that if he was doing a good job she should tell him so.

So, give older employees less feedback and younger employees more feedback? Why can’t employers and supervisors just give the amount of feedback that they want to and tough luck if employees don’t like it? Because of a basic life principle – if you give people what they need, they will probably give you what you need.

Quantity of feedback is just one of the many differences in what members of the five generations need. Unfortunately, limited space does not allow me to provide any more examples than the one above. Fortunately, there is an abundance of information at your fingertips, such as “How five generations can effectively work together” at or at your bookstore, such as “Generations at Work” by Claire Raines.

Of course, remember that we are generalizing when we are talking about generations, so we can’t automatically assume things about people because of their birthdate. This information is just an introduction into what employees might need because of their age. Employers and supervisors will have to learn about the employees as individuals to get it right.  Is it worth the time and effort? I think so. When employees’ needs are met they usually do their jobs well. Isn’t that what employers and supervisors need?

Robin Paggi is the Training Coordinator at Worklogic HR.

She last wrote for us on  Accommodating Religious Beliefs and before that on Politics and Work and before that on Emojis-A Workplace Communications Menace and before that on Alcoholism and the ADA in Employment. To read her previous columns, search Paggi in the search box at the top of this home page.