an individual who would report an accident or injury with a result of a group of employees losing an incentive will face retaliatory action by fellow employees or the employer. Employer advocacy groups have raised concerns about OSHA’s stance. According to the American Exploration & Production Council, “Properly managed incentive programs—even those based on injury rates—can and do result in positive workplace improvements.” As a practical matter, employers need to maintain a cau- tious approach to avoiding retaliation claims: include “no retaliation” as a core principle and establish reporting ave- nues for suspected violations of the company’s commitment against retaliation; if in doubt, assume even internal com- plaints about any violation of law or regulation may be pro- tected; set up an early detection system to ensure that com- plaining employees do not experience unwarranted adverse actions, even and especially adverse actions that don’t affect pay or advancement; and give careful review to coincidences


of timing where an adverse action is set in motion or sched- uled to occur days or weeks after a protected complaint. In such circumstances, the employer should be sure that the adverse action is consistent with how other employees have been treated and that the documentation and discussion of the decision have been free of retaliatory bias. 7


Phone consultations with LMVT are a member benefit and are included in the cost of NALP membership. Please call the LMVT main office at 205-326-3002 and ask for either Richard Lehr or Frank Rox if you have any questions concerning this article. Frank Rox may also be reached at 404-312-4755.


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