Nationwide, there are many protections for “whistleblowers” — individuals who report improper or unlawful practices within a company or to outside organizations, courts or government agencies — to ensure that these whistleblowers are not retaliated against, such as by demotion, harassment or firing. Those protections generally apply to staffing firms’ assigned workers, who usually have recourse against either the staffing provider or job site employer if they retaliate for whistleblowing.
Three of the most prominent whistleblowing laws are the Dodd-Frank Act, the Occupational Safety and Health Act of 1970 (the OSH Act), and Title VII of the Civil Rights Act of 1964. These laws all prohibit retaliation.
Dodd-Frank. The Dodd-Frank Act protects whistleblowers who lawfully report or assist in reporting employers who violate securities laws. The act defines a whistleblower as “any individual who provides … information relating to a violation of the securities law.” The act does not limit its protections solely to employees. It does not matter if a whistleblower under the act is a temporary staffing agency employee — or an employee at all; any person who blows a whistle in this scenario is protected from retaliation.
OSHA. In an advisory memo, the Occupational Safety and Health Administration has clarified that Section 11(c) of the OSH Act applies to both host employers and staffing agencies. Any staffing agency employee can raise an OSH Act complaint with the agency, host employer or both. Both businesses may then face legal action if they take adverse actions or retaliate against the whistleblower.
Title VII. Title VII of the Civil Rights Act of 1964, the main US law addressing employment discrimination and harassment, protects employees from retaliation for reporting violations. Title VII is enforced by the Equal Employment Opportunity Commission, which has clarified that its retaliation protections cover all employees of any employer or any employment agency.
If an employee does blow the whistle at a business where he or she has been placed, the staffing firm should proceed just as if the worker had blown the whistle within its own business. Any removal of the employee, firing of the employee or even moving the employee to a less-desirable position can be considered retaliation on behalf of both employers. If the employer requests that the employee be moved after engaging in protected whistleblowing activity, following this request could result in the staffing agency being found liable for retaliation. The safest route for a staffing agency in this situation is to proceed as it would in any other whistleblowing circumstance, avoid making any decisions that could be deemed retaliatory or adverse, and seek the advice of counsel for next steps.
This does not mean that individuals who report or complain about possible violations of law cannot be fired. But if you do fire someone who recently complained, that person can sue you alleging retaliation. Indeed, sometimes, individuals who are about to face corrective action will report some real or imagined violation precisely in order to garner some aegis against that action. Unfortunately, this works. Timing alone can create an inference of retaliation, and make a mountain out of what would normally be a simple HR molehill.
This does not mean that businesses cannot terminate or take other corrective action when it would otherwise. It does mean that they should measure twice, cut once. For staffing suppliers, this means understanding why a termination request has come, ensuring that it is properly documented and not embellished, and making sure that whatever standard was violated has been evenly applied. These are HR basics, but they are doubly important in cases — like whistleblower cases — where third-party scrutiny is very likely.
