What Rights Do Whistleblowers Have in the Workplace?team
Sometimes employees witness dangerous, fraudulent, or otherwise wrongful activities during the course of their employment. The law tries to protect employees from consequences when disclosing hazardous or wrongful activities in their workplace against an employer’s right to protect confidential information.
When employees disclose these practices to people who may put a stop to them, the employees are said to have “blown the whistle,” otherwise known as whistleblowing. Before approaching external authorities, employees usually report illegal activities to their managers, supervisors or a neutral third party, hoping their employer will take corrective steps.
Some employers appreciate the whistleblowing employee’s good faith and take steps to put a stop to the unlawful acts that have taken place or are about to happen. Others may take it as the employee’s attempt to ruffle some feathers and retaliate. In extreme cases, employers may dismiss the whistleblowing employee for insubordination and refuse to pay any compensation.
What protections do whistleblowers have in the workplace? What is the importance of a whistleblowing policy? This article will answer these questions and explain how a lawyer can help.
What are the Legal Protections Available to Whistleblowers in Ontario?
Public sector employees in Ontario are protected from whistleblowing-related retaliation under the Public Service of Ontario Act (“PSA”). Similar protections are available to federal employees under the Public Servants Disclosure Protection Act (“PSDPA”).
Private sector employees may be protected under different laws depending on the information being disclosed.
Ontario’s Occupational Health and Safety Act (“OHSA“) protects employees who disclose unsafe practices or health concerns in the workplace. An employer can face legal liability if they dismiss, suspend, or otherwise retaliate against a worker for disclosing workplace violations of the OHSA to the Ministry of Labour.
The Ontario Securities Commission’s Whistleblower Program (“Program“) encourages individuals to report serious securities law-related misconduct. The Program accepts tips on possible violations of securities law and offers a reward of up to five million dollars for tips that lead to enforcement action. It also allows whistleblowers to report securities law violations anonymously through a lawyer.
Ontario’s Securities Act (“SA”) and Commodity Futures Act (“CFA”) also provide remedies for whistleblowers who experience retaliation for reporting violations of securities laws. Employees do not need to be shareholders in their employer to make whistleblower complaints for violations.
The Criminal Code of Canada (“Code”) protects whistleblowers who report their employer’s criminal activities. Particularly, the Code prohibits employers from taking, or threatening to take, disciplinary action against employees for reporting or intending to report the employer’s statutory or regulatory violations.
Additionally, the Financial Services Regulatory Authority of Ontario Act (“FSRA”) protects people reporting the contravention of Ontario’s pension law and other sectors governed by FSRA.
How Can a Whistleblowing Policy Help Employers?
Employers may introduce a whistleblowing policy to allow workers to report illegal, fraudulent, or hazardous acts or arrangements in the workplace. The goal is to address unlawful or dangerous activities and take corrective steps.
A whistleblowing policy allows employers to avoid adverse government action, regulatory penalties, and possible negative publicity. It enables employees to report their workplace concerns anonymously or otherwise. Without a whistleblower policy, employers risk not being aware of illegal or wrongful issues occurring in their workplace which might result in significant legal liabilities and impact their business.
An employer can protect the whistleblowers’ identity by allowing anonymous complaints. This encourages people to report any incident or workplace practices without fearing retaliation from their co-workers or employers.
A whistleblowing policy usually provides a detailed reporting process, including information about:
- Reportable incidents and concerns;
- People covered by the definition of whistleblower;
- How to report a concern or incident;
- Department or person investigating a whistleblower’s report or complaint;
- Investigation process and decision-maker; and
- Measures by the employer to protect a whistleblower’s identity.
A whistleblowing policy also does not usually handle disputes between colleagues, bullying, harassment, discrimination, and simple incidents of mismanagement. Those issues should be addressed through separate workplace policies geared towards complying with the OHSA and the applicable Human Rights legislation.
A whistleblowing policy should be clear and explicit about what sort of conduct it applies to. Employers should also beware that their whistleblowing policy and mechanisms need to comply with applicable privacy legislation and other applicable workplace regulations.
How an Employment Lawyer Can Help
If you are an employer, it is best to obtain legal advice regarding measures you should take to comply with whistleblower laws and navigate whistleblower complaints. You should allow employees to report illegal activities in the workplace without fearing retaliation. An employment lawyer can help you draft a whistleblowing policy in accordance with this requirement.
Many organizations hire a Chief Legal Officer (CLO) on a part-time, full-time, or as-needed basis to help comply with their legal obligations. A CLO is an off-site legal executive who can work with your organization. They can provide comprehensive legal services, including providing legal advice, workplace policy drafting, and litigation.
A CLO can use its knowledge of employment law to help draft or revise your whistleblowing policy to comply with legal and regulatory requirements. A CLO can also help you draft a whistleblowing policy addressing your employees’ concerns regarding workplace safety and preventing illegal activities. It can protect your organization from negative publicity and possible legal liabilities.
If your organization does not have a CLO, you may seek the advice of an employment lawyer to clarify your rights and obligations. An employment lawyer has the experience and expertise to advise you regarding your whistleblowing policy, help you navigate a legal proceeding in connection with a whistleblower complaint, and provide you ongoing legal advice on an as needed basis.
If you are an employee, an employment lawyer can help you make an anonymous whistleblower complaint or pursue other legal action against your employer. They can help you take steps to protect your identity while reporting your employer’s misconduct. A lawyer can also help if you are subject to workplace discipline because of a whistleblower complaint.
Employees must protect their employer’s confidential information. They are also expected to be loyal to the employer and act in good faith. However, this duty of confidentiality does not apply to employers’ illegal or wrongful acts.
On the contrary, the law encourages employees to report their employer’s misconduct by providing monetary incentives and mechanisms for making anonymous reports.
Some organizations have a whistleblowing policy that allows employees to report illegal or wrongful practices in the workplace. Employees should use the employer’s internal reporting mechanisms, if any, before approaching government and regulatory authorities to make a formal whistle-blower complaint.
If you are an employer, an employment lawyer has the knowledge and expertise to help you draft or update your workplace whistleblowing policy, and handle whistleblowing complaints.
If you are an employee who needs help making a whistleblower’s report, you should consult with an employment lawyer. They can assist in protecting your identity or responding to retaliation faced because of whistleblowing.
If you are an employer with questions about potential whistleblowing in Ontario, or an employee seeking to clarify your rights as a whistleblower, our experienced workplace lawyers are happy to help. Contact us at 1-(800)771-7882 or email [email protected] and we would be happy to assist.
If you are a small or medium size company looking for full-service support, visit our CLO program page for our strategic solutions.