The policy purpose

This is a critical component of the policy and simply lays the groundwork for your policy. I wanted to be direct with our audience and let them know that we take retaliation seriously in our company. Again, it is a cornerstone element of our compliance program and critical for people to understand. A model policy might look like this:

Under applicability and scope, as detailed below, we expanded our policy to include vendors who work in our facility in addition to employees, contractors, etc. Third parties and customers are important groups to include, because they might also be impacted by retaliation. As an example, I was once contacted by a soda vendor who lost a contract with the company after they reported an unsafe act within the facility. An investigation uncovered a level of retaliation from the facility manager who switched vendors after the report. The manager was disciplined, and the vendor was reinstated.

The policy is only as good as the communication channels around it. For customers (e.g., a customer who might witness inappropriate behavior), you might want to create a communication method (e.g., a brochure) and a reporting mechanism for them to use. In addition, creating a “vendor code of conduct” is always a good idea. It can communicate the process of reporting and help a vendor understand their responsibilities to your company.

Applicability and scope

A model policy should include clear definitions, such as:

Under the policy statement, this component of the policy stipulates the specifics of what associates can and cannot do:

Associates may not retaliate, threaten or punish anyone who, in good faith, engages in protected actions under this policy. All forms of retaliation are prohibited, including any form of discipline, reprisal, intimidation, or other form of retaliation for participating in any activity protected by law or this policy. Protected conduct includes, but is not limited to, the following:

• Filing a good faith internal complaint (written or oral) with <department name> specifically identifying an unlawful or unethical practice;

• Filing a good faith complaint of an unlawful practice with the appropriate country or federal or state enforcement agency, such as filing a harassment or discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC) or reporting a potential safety issue to your manager;

• Participating or cooperating in good faith in an internal investigation related to an allegation of an unlawful practice or policy violation;

• Participating or cooperating in good faith in an external proceeding related to an allegation of an unlawful practice or policy violation;

• Requesting an accommodation or leave under the Americans with Disabilities Act, Family and Medical Leave Act, or state leave or anti-discrimination statute;

• Filing a worker’s compensation claim; or

• Reporting an unsafe act.

Unlawful practices may include alleged ethical, compliance, or legal violations under any applicable country, federal, or state law. Examples include:

• Healthcare fraud and abuse (such as anti-kickback provisions, false claims, etc.),

• Harassment/discrimination,

• Wage and hour dishonesty,

• Safety and health violations,

• Financial irregularities,

• Foreign Corrupt Practices Act or International Anti-Bribery and Fair Competition Act infringements,

• Dishonest sales practices,

• Healthcare non-compliance,

• Improper disclosure of the company’s confidential or proprietary information,

• Improper use of company assets,

• Conflicts of interest,

• Privacy or HIPAA violations, or

• Violations of government contract requirements.

Standards and procedures

When you outline the standards and procedures of the policy, it’s important to call out what a “bad faith” report consists of. It should be defined and understood by the organization. Although I have never experienced a bad faith report, they do exist, and they can negatively impact your organization unless action is taken against the reporter. The elements of the standards and procedures of a policy include:

1. Reporting

   1. This is where we specify how and when to report and that we will take the report seriously and confidentially.

2. Observing or experiencing retaliation

   1. I specified a number of days in the policy, because I wanted immediate action to occur from the associate. We give associates three days to report.

3. Investigating alleged prohibited retaliation

4. Responding to a bad faith report

   1. “Teammates are prohibited from making a bad faith report, which means the teammate knew the report was false or misleading. If the company determines that a report was made in bad faith, the teammate may be subject to disciplinary action, up to and including termination.”

   2. We spell out the definition to ensure associates understand what a bad faith report looks like.