FairWarining Reports

Report Blows the Whistle on OSHA’s Whistleblower Protection

Whistleblowers are supposed to be protected from reprisals when they report safety hazards or other law violations by their employers. But for the Occupational Safety and Health Administration, whistleblower protection is a sideline from its main focus on job safety — and critics say it shows.

The Government Accountability Office once again has ripped the whistleblower protection program, releasing a new report Thursday that blames glaring weaknesses on chronic inattention from OSHA leaders. Among the GAO’s findings: Nearly 40 percent of investigators have not taken or registered for a required basic training course on the statutes they are supposed to enforce.

“Workers are the first line of defense against dangerous working conditions,” said Sen. Tom Harkin, D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee. “We  have an obligation to protect those who courageously risk their careers to protect the safety of others.”

Training lapses cited by the GAO are but one shortcoming of the whistleblower program, as FairWarning revealed in a lengthy report in June. Others include a serious lack of staff, resulting in a thin and demoralized corps of investigators overwhelmed by the volume of retaliation complaints. That, in turn, has created long delays in resolving cases — and a potential bias against whistleblowers because it is faster and easier to dismiss complaints than to substantiate them.

Behind the bureaucratic cadence of the GAO report is a hint of exasperation. “For over 20 years, we have reported that OSHA has focused too little attention on the whistleblower program,”  the document says. Indeed, the new report was sought by key Senate and House members to see if OSHA had implemented prior recommendations by the GAO in January, 2009.

Among other things, the GAO had found in the previous audit that many investigators lacked basic tools such as portable printers, and advised OSHA to establish minimum equipment standards. However, the new report says, OSHA has not implemented the recommendation — “citing resource constraints.”

OSHA “has done little to ensure that investigators are adequately trained or have the necessary tools to do their job,” the GAO said.

The whistleblower program, which began with passage of the Occupational Safety and Health Act in 1970, was meant to embolden workers to raise safety issues without fear of being harassed, demoted or fired.

Congress decided whistleblower protections were such a good idea that it added similar provisions to many newer laws. OSHA was assigned responsibility for these laws, too.

Currently, the agency is charged with enforcing anti-retaliation provisions of 18 different statutes, most having nothing to do with its core mission of preventing workplace injuries and deaths. Included are laws covering air and water pollution, trucking, airline and nuclear safety — and even the Sarbanes-Oxley Act to combat accounting fraud, and the new health care reform law enacted earlier this year.

But while piling on new statutes, Congress and OSHA have rarely boosted staff, resulting in bloated caseloads and long delays in resolving complaints, documents and interviews show. Some 2,000 complaints are filed annually, with the whistleblower successful about 20 percent of the time –sometimes, through a ruling by OSHA, more often through a settlement with the employer.

The GAO report attributed many of the program’s defects to lack of central control by OSHA and the wide latitude of regional officials to operate as they see fit.

Regarding training, for example, the GAO said that while many investigators had not taken a mandatory course on how to handle complaints under the various statutes, the numbers were especially high in three of the 10 OSHA regions — Atlanta, Chicago and Philadelphia. “According to one senior official,” the report said, “some regions are unwilling to send investigators to mandatory training, citing a lack of need for such training.” In at least two regions, the report said, supervisors who determine the outcome of whistleblower cases haven’t had the training, either.

With autonomy even extending to how to investigate cases and decide outcomes, whistleblowers “have little assurance that a complaint filed in one region would have the same outcome if it were filed in another,” the GAO said.

With OSHA in the process of hiring 25 new investigators to deal with heavy caseloads, the lack of central controls means that new hires could be diverted by regional officials to other tasks, the report said.

Two other examinations of the whistleblower program are in their final stages. The Department of Labor inspector general’s office is investigating the program, and OSHA itself has been conducting what it calls a “top-to-bottom review.” Among subjects under discussion is whether whistleblower protection should be moved from OSHA to another part of the Department of Labor.

In a prepared statement responding to the GAO report, David Michaels, assistant Secretary of Labor for OSHA, pledged that investigators and supervisors who have not undergone training will do so within 18 months. “With our available resources, OSHA is working hard to ensure that whistleblowers are protected from retaliation,” he said.

In a prepared statement, lawmakers who requested the report — including Harkin, Sen. Patty Murray, D-Wash., and Reps. George Miller, D-Calif., and Lynn Woolsey, D-Calif.– noted that after workplace tragedies such as the Upper Big Branch Mine and BP Deepwater Horizon explosions, “Congress heard how workers’ voices were routinely silenced from speaking up on significant problems for fear of job losses.”

“Witnesses said that increased whistleblower protections might have prevented some or all these tragedies,” they said.

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Myron Levin - FairWarning

About the author

Myron Levin is editor of FairWarning.

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