For years, OSHA has been on the receiving end of considerable criticism regarding its Whistleblower Protection Program responsibilities. Since January 2009, there has been a frontal assault from certain members of the House Committee on Education and Labor1, the General Accounting Office,2,3 and even OSHA’s Inspector General.4 In all fairness, OSHA lacks the staff, money and resources to adequately respond to the thousands of whistleblower complaints received each year.
On May 11, 2010, the Professionals for the Public Interest (PftPI), a labor union-centric organization, held a meeting on whistleblowing. Dr. David Michaels, assistant secretary of labor for occupational safety and health, was the keynote speaker. In his presentation, he stated:
In FY 2009, OSHA received 2,160 complaints and completed 1,947 investigations. Of those completed, OSHA recommended litigation or otherwise found merit in only 3 percent of whistleblower complaints; 20 percent were resolved by settlements reached either by OSHA and the parties or by the parties alone; 63 percent were dismissed; and 14 percent were withdrawn. Our results for the first half of fiscal year 2010 continue in the same disappointing vein.5
Dr. Michaels rightfully contends the whistleblower protection provisions in Section 11(c) of the OSH Act and those spread across 16 other statutes for which OSHA has whistleblower protection responsibility is a “patchwork quilt of worker protections.” He also quoted the Public Employees for Environmental Responsibility’s press release that stated OSHA’s Whistleblower Protection Program is “hopelessly overwhelmed.” Note: more statutes with whistleblower protection provisions are coming (e.g., Patient Protection and Affordable Care Act). Interestingly, during the Q&A, Dr. Michaels could not answer how many of the three percent (58) whistleblower complaints that had “merit” were actually litigated. No one asked Dr. Michaels the obvious question: Why in the world would anyone file a whistleblower complaint considering OSHA’s track record for pursuing employers who retaliate against the whistleblower and how can a whistleblower be assured they will be “protected”?
Realistically, what employee is going to risk his or her livelihood filing a safety or health whistleblower complaint with OSHA; even with all the so-called protections afforded in Section 11(c) of the 1970 OSH Act or the additional protections of the proposed Protecting America’s Workers Act (HR 2067) to amend the OSH Act? Since it takes OSHA on average 174 days to investigate a single complaint,6 the last thing OSHA needs is a ramp up in the number of whistleblower complaints and more laws with whistleblower provisions.
Is there a way to dissolve the alleged need for a Whistleblower Protection Program? Let’s consider a radical systems thinking approach to organizational management that would lead to dissolving the need for a whistleblower program altogether. The following is drawn, in part, from Chetan Dhruve’s must read book, Why Your Boss Is
What kind of system do we really work in?
Whether you work in the private or public sector, virtually all of us inhabit a box on a hierarchical organization chart. What do these charts really represent? For the most part, they represent the “Boss-Subordinate relationship.” Good or bad, the fact that there are human beings interacting within this “Boss-Subordinate relationship” makes it a “system.” A “system” is an entity that maintains its existence through the mutual interactions of its parts. It makes more sense to understand this relationship from a systems thinking point of view than from an analytical thinking perspective.
Over the years, the term “boss” has morphed into the term “leader.” A vast glut of material has been written on “what” leadership is, but Dhruve raises a different question, “Who is a leader?” Dhruve provides a simple answer: “A leader is a person who has been elected to lead by the people he or she is leading.” He goes on to state, “We have a different word for someone who assumes power and leads without being elected: dictator.” I know, dictator is a strong word, but let’s face it, not voting for your leader results in a dictatorship system or as Dhruve calls it a stealth dictatorship system.
Within the science of systems thinking there is a concept known as “emergent properties.” Simply stated, emergent properties surface as a result of the parts in a system interacting with each other to create characteristics that are different from the characteristics of the individual parts. For example, your health is an emergent property of your diet, your fitness, your genes and your lifestyle all interacting with one another. What is the principle emergent property of a dictatorship system? Fear. What is the predominant emergent property of a leadership system? Freedom. In the context of our work environment, the difference between the emergent properties of these systems can have a chilling affect on whether someone will take the risk in filing a safety complaint with OSHA. Keep in mind, filing a safety complaint with OSHA, more often than not, is a complaint against your boss. In a dictatorship system, the boss has the power to fire and subordinates are quite cognizant of this power. Consequently, subordinates know they have entirely too much to lose - money, health insurance, security, self-respect, image in the community, children’s education, future plans, etc., to buck the system. Another reason Dhruve raises for not “tattling” on the boss is that complaining about your boss makes you a victim. Implicit in victimhood is lack of toughness; can’t cut it in the business world.
Institutionalizing freedom in a true leadership system is obviously not going to happen overnight. Think about it for a moment; how do you think your relationship to your boss would change if you had the power to vote him or her into and out of office? Do you think your boss would be more attentive to your work-life balance needs and safety success? Do you think you would be more supportive of his or her goals and objectives? In all likelihood, the answer to these questions is “yes,” which leads me to believe that allowing employees to vote for their leaders would result in dissolving the need for whistleblower protection programs.
1 September 16, 2010. U.S. House Committee on Education and Labor.GAO: Improved Investigator Training and More Effective Management Needed for Federal Whistleblower Program. Retrieved at http://edlabor.house.gov/newsroom/2010/09/gao-improved-investigator-trai.shtml.
2 January 2009. U.S. Government Accounting Office.
3 August 2010. U.S. Government Accounting Office. WHISTLEBLOWER PROTECTION – Sustained Management Attention Needed to Address Long-standing Program Weaknesses. GAO-10-722.
4 September 30, 2010. U.S. Department of Labor, Office of Inspector General - Office of Audit. OSHA Complainants Did Not Always Receive Appropriate Investigations Under the Whistleblower Protection Program. Report Number: 02-10-202-10-105.
5 David Michaels. May 11, 2010. Whistleblowers and OSHA: Strengthening Professional Integrity. Speech to Professionals for the Public Interest. Washington, D.C.
6 Ibid. David Michaels.
7 Dhruve, C. 2007. Why Your Boss Is