Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to over 50% in FY 2022. Similarly, the number of total whistleblower complaints filed with OSHA increased significantly in FY 2023, with the vast majority of those complaints – about 71% - filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts). The whistleblower complaints filed under Section 105 of the Mine Safety and Health Act have also been on the rise and MSHA is particularly aggressive in its approach to the investigation of these claims, often seeking temporary reinstatement of the complainant for the duration of the investigation, and litigation, if the complainant was terminated.

When a retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. However, each Agency handles the investigation and analysis of the evidence differently – using varying processes and burdens of proof to determine whether and how the retaliation complaint should proceed. The strategy and response provided by the employer will depend on the type of complaint and the agency investigating it, but it is generally an opportunity for the employer to provide the information necessary for the agency to conclude its investigation and ultimately close the case file. The responses can, however, create a written record of admissions that the agency could use against the employer. Thus, employers should be strategic in their approach to a whistleblower investigation and the information shared at that early stage.

Participants in this webinar will learn:

• Applicable federal whistleblower and anti-retaliation laws

• The varying processes used by the EEOC, OSHA, and MSHA to evaluate whistleblower and retaliation claims

• Strategies employers can use to effectively respond to retaliation complaints

• Proactive measures employers can take to avoid employee complaints

This program is currently under review for SHRM and HRCI credits.