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The One Policy I Must Have

A small client recently told me that they did not like to have a lot of written policies because they believe that every policy is one more opportunity for disputes to arise. When I started to argue the contrary, the client asked me: “what is the one policy I must have?” My immediate answer was that if I had to pick one, it would be a complaint and anti-retaliation policy. Here’s why.

First, if there is no avenue for employees to raise complaints, they are far more likely to call a government agency, a union, or lawyer with the complaint. A properly functioning internal complaint process can save an employer a lot of headaches. Second, in certain types of harassment cases, the fact that the employer has a complaint procedure that the plaintiff may not have followed could provide a defense to the claim of harassment. Third, including an anti-retaliation provision in this complaint policy can go a long way toward making certain government agencies, such as OSHA, feel much better about the employer.

But why should we be concerned with OSHA when it comes to complaints and anti-retaliation? The reason is that OSHA oversees 22 different whistleblower laws. In fact, just this week, OSHA issued additional recommended practices for anti-retaliation programs. Some of OSHA’s recommendations are common sense, like their point that it is important that management show a commitment to preventing retaliation against those who raise complaints. In order to make sure that this is the case, OSHA suggests that managers and board members be trained on issues related to retaliation. That makes good sense. A more controversial recommendation by OSHA is that any investigation should be done completely independent from the company’s legal counsel. This not only reflects the government’s apparent animus toward the attorney-client privilege but also generally does not comport with how most companies operate. Along these same lines, OSHA recommends that employers publicly recognize the “contribution” an employee has made by making a complaint and maybe even giving that employee an award. The issues with that idea are many and obvious.

It is important to think through carefully your company’s complaint and retaliation policies. The OSHA guidance must be considered if for no other reason than that OSHA is a big player in the whistleblower game. If there is one policy an employer wants to get right, it is this one.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.