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Workplace safety whistleblowers often left hanging, according to GAO report (3/3)

March 3, 2009
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The U.S. Government Accountability Office (GAO) has issued a report indicating the majority of workers who blow the whistle and complain to OSHA about unsafe workplaces or work processes are left hanging without protection against reprisals from their employers.

GAO’s review of OSHA data show agency investigations resulted in a favorable outcome for whistleblowers in about 21 percent of 1,800 complaints closed in fiscal year 2007, both in terms of initial decisions and on appeal. Nearly all of these were settled through a separate agreement involving the whistleblower and the employer, according to the report.

GAO stated that the actual proportion of favorable outcomes may be lower than OSHA’s data indicates because some decisions were inaccurately recorded in OSHA’s database.

Several complaints recorded as settled were actually dismissed by OSHA or withdrawn by the whistleblower, while other complaints reported as settled lacked sufficient documentation to be able to determine the actual outcome of the complaint. When complaints were settled, most often whistleblowers received a monetary payment.

Many complaints filed by whistleblowers were not investigated or recorded in OSHA’s database. For certain statutes — including the one with the most complaints, the Occupational Safety and Health Act — OSHA permits investigators to screen out complaints without recording them in its database if they are not filed on a timely basis or if they do not meet the criteria to open an investigation. Because these complaints are never recorded in its database, OSHA does not have a complete picture of its overall investigator workload or of the outcomes of all complaints received, according to GAO.

OSHA also lacks reliable information on processing times, according to the GAO report. At the appeals level, the reliability of information on the processing times is mixed. GAO determined the timeliness of data at the Office of Administrative Law Judges (OALJ) level are reliable, with the data showing that the OALJ completed appeals cases in fiscal year 2007 in an average of about nine months. However, these times varied widely, ranging from ten days to about three years.

GAO found that the Administrative Review Board (ARB) data (the final stop for appeals of OSHA whistleblower decisions) are unreliable and that the agency lacks sufficient oversight of data quality. GAO file review of ARB cases closed in fiscal year 2007 found processing times ranged from 30 days to more than five years.

At all levels of the whistleblower program, GAO found that increasing caseloads, case complexity, and involvement of the parties’ legal counsel affect case processing times.

Overall, based on information from the five OSHA regions GAO visited, agency investigators screened out a large portion of complaints they received, but the proportion varied widely across the regions. Two of the five regions screened out very few complaints; two others screened out more than they investigated.

When whistleblower complaints were appealed, whistleblowers similarly received a favorable decision in a minority of cases. Depending on the statute, whistleblowers may appeal to OSHA’s Appeals Committee, or whistleblowers or their employers may appeal to OALJ and, ultimately, ARB. While there were some differences in outcomes from the two different appeals processes, most appeals were dismissed or denied in fiscal year 2007, most often due to insufficient evidence.

Regardless of the appeals process, about one-third or fewer of outcomes favored the whistleblower.

OSHA faces the challenge of ensuring that investigators in all ten regions have the resources they need to address their large and complex caseloads, according to GAO. Nearly half of the whistleblower investigators reported on our survey that the equipment they have does not meet the needs of their jobs, and some report lacking at least some essential equipment, such as a portable printer or a laptop computer.

OSHA has not established minimum equipment standards for its investigators, and regional administrators must make key management decisions for the whistleblower program in their region, including how to allocate resources among many different OSHA priorities.

Another challenge for OSHA: the majority of investigators told GAO that they need more training to effectively address cases from some of the complex federal statutes that OSHA administers. Between one-third and one-half of investigators responding to GAO’s survey reported they have not received any specific training on two of the statutes that OSHA considers most complex—Sarbanes-Oxley and the Aviation Investment and Reform Act .

OSHA generally agreed with the GAO findings, but expressed concerns that GAO did not take into account the program’s resource constraints when developing the report’s findings and recommendations. In the report, GAO notes that, due to the addition of several new statutes, investigators are carrying larger, more complex caseloads. But given the program has no budget of its own, decisions on how to allocate staffing or other resources among the various OSHA programs are within the agency’s control and discretion.

The GAO report recommends that the Secretary of Labor direct OSHA to establish a mechanism to ensure the accuracy of the data in its management information system and to ensure that the planned new system includes information on screened out cases.

The report also recommends that the secretary direct OSHA to revise its audit directive to ensure independence and accountability, and to take steps to ensure that regions conduct these audits within specified time frames.

OSHA does not routinely conduct independent audits of the program to ensure consistent application of its policies and procedures, according to GAO.

OSHA’s new field audit program lacks clarity in the current audit guidance, according to GAO, and officials cannot ensure that every region’s whistleblower program is audited using the same criteria. In addition, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program, states GAO, and the regions are not held accountable for audit findings. All phases of OSHA’s current audit process are controlled by the regional administrator whose programs are being audited.

The secretary should direct OSHA to establish minimum standards for equipment and materials needed by whistleblower investigators, according to the report.

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